Accept License Agreement

XCORE VOCALFUSION LICENCE Last Updated: 18 June 2023 BY ACCESSING, USING, INSTALLING OR DOWNLOADING THE XMOS SOFTWARE, YOU ARE AGREEING THAT YOU HAVE AUTHORITY TO: (A) BIND THE LICENSEE (AS DEFINED BELOW); AND (B) THAT THE LICENSEE AGREES TO BE BOUND BY THESE LICENCE TERMS AND CONDITIONS; AND (C) THE LICENSEE IS A BUSINESS AND WILL BE USING THE SOFTWARE FOR BUSINESS PURPOSES. IF THE LICENSEE DOES NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS WE WILL NOT LICENCE THE VOCALFUSION SOFTWARE TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE VOCALFUSION SOFTWARE. This licence agreement (“Agreement”) is a legal agreement between you (acting in your individual capacity or on behalf of a legal entity) (“Licensee" or “you”) and XMOS LIMITED Company No. 05494985 of Programme, All Saints Street, Bristol, United Kingdom, BS1 2LZ (“XMOS”, “us" or ”we"). The Agreement relates to the Devices defined below, which the Licensee has purchased from XMOS in accordance with its standard terms of sale, the Software, Third Party Software and any Updates or documentation accompanying this Agreement, all capitalised terms as defined below. You will require a unique XMOS website account to enable you and your authorised Users to access and use the Software. This Agreement comes into effect on the date you download or access the Software. To load the Software to the Devices, Licensee will need to download and install certain XMOS Tools, available at http://www.xmos.ai/. DEFINITIONS Devices: the xCORE VocalFusion processors and evaluation boards produced by XMOS. Effective Date: the date this Agreement comes into effect. Open Source Software: means any software which is licensed under Open Source Terms. Open Source Terms: means terms in any licence that requires as a condition of use, modification and/or distribution of a work: (a) the making available of source code or other materials; (b) the granting of permission for creating derivative works; (c) the reproduction of certain notices or licence terms in derivative works or accompanying documentation; and/or (d) the granting of a royalty free licence to any party under intellectual property rights, regarding the work and/or any work that contains, is combined with, requires or otherwise is based on a work. Purpose: has the meaning given to it in clause 1. Software: the VocalFusion software downloaded by the User from the XMOS website, or provided by an XMOS representative, which includes the Third-Party Software, customized for the Devices and any Updates and documentation made available with this Agreement. Third Party Software: the proprietary BeClear software owned by Philips International BV and any Updates thereof. Updates: any updates to the Software or Third-Party Software which XMOS makes available via http://www.xmos.ai/ and which a User can download and install with the XMOS tools available on the site. User(s): shall mean you and any named third party authorised by the Licensee and XMOS who acts on behalf of the Licensee to integrate the Software with the Device (such as an ODM or Third Party Design House) provided in each case they have agreed to be bound by this Agreement. XMOS Confidential Information: has the meaning at clause 4. 1. Permitted Use. In consideration of Licensee agreeing to be bound by the terms of this Agreement, XMOS grants Licensee a non-exclusive, non-transferable, non-sub licensable, licence for Users to download the Software and install and configure the Software on or for use in conjunction with the Devices only on the terms of this Agreement (“Purpose”). Licensee and any Users may install and use any documents provided as is reasonably necessary for the Purpose. Licensee agrees that the terms of this Agreement will apply to any end devices which it (or Users on its behalf) build which contain the Devices. The Software is licensed, not sold by XMOS for use only under the terms of this Agreement. XMOS and its licensors retain ownership of the Software and reserve all rights not expressly granted to Licensee. 2. Restrictions. Except as expressly set out in this Agreement or as permitted by any local law, Licensee undertakes that it shall and it shall procure that any Users shall: (a) not copy or reproduce the Software (or any part thereof) except where such copying is incidental or necessary for back-up; (b) not sell, distribute, sublicense, transfer or make available in any manner or means the Software or Devices to any third party on a standalone basis save this shall not prevent the Licensee distributing or using the Devices with the Software installed therein and making this available to a third party; (c) not alter, modify, adapt, translate, disassemble, decompile, reverse-engineer, decrypt, create derivative works, reverse assemble, attempt to derive source code or algorithm nature of the Software or Devices or create derivative works based on the whole or any part of the Software or Devices nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability and provided that the information obtained by Licensee during such activities: (i) is used only for the purpose of achieving inter-operability with such other software program and/or the Devices; and (ii) is not disclosed or communicated to any third party; and (iii) is not used to create any software, firmware, device or otherwise which is/are substantially similar to the Software. (d) not decode, de-crypt, turn off, remove, circumvent or neutralise any security measures, identification or activation codes or protection within the Software; (e) not remove any copyright notices; (f) not attempt to learn information about the internal architecture, algorithms, design, operation, manufacture, features or functionalities of the Software beyond that information provided by XMOS; (g) not produce its own version of the Software (in whole or in part); (h) not perform any action with regard to the Software in a manner that would require all or any of the Software to be licensed under any Open Source Terms. Such actions shall include: (i) combining the Software (in whole or in part) or any derivative work thereof with any Open Source Software, by means of incorporation or linking or otherwise; and (ii) using Open Source Software to create a derivative work of the Software (including any part of the Software); (i) not making any representations, warranties or guarantees in relation to the Software or on behalf of XMOS or any of its licensors in relation to the Software or any part(s) therein; and (j) not create any software, firmware, device or otherwise which is/are substantially similar to the Software; (k) only use the Software (in whole or in part), in conjunction with the Devices. 3. Intellectual Property Rights. Licensee shall not use any trademarks, names or marks of XMOS, its licensors (including of any Third-Party Software) without prior written agreement of XMOS or its licensors. You will not rent, lease, lend, sell, redistribute or sub-licence the Software on a standalone basis. You shall be entitled to install and configure the Software on the Devices for the Purpose and make the Devices and the Software available as part of any end devices which you build which contain the Devices provided where this contains the Software you ensure any User is made aware of and agrees to be bound by the terms of this Agreement. 4. Confidentiality. The Device, Software and all Intellectual Property Rights and all functionality therein and any bugs, problems and/or feedback encountered by Licensee or its Users are deemed “XMOS Confidential Information”. Licensee shall not, and shall procure that its Users shall not disclose any XMOS Confidential Information to any third party without prior written approval from XMOS. Licensee shall not copy, adapt, or otherwise reproduce the XMOS Confidential Information save as is strictly necessary for the purposes of the Purpose. Licensee 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. The obligations contained in this clause shall not apply, or shall cease to apply, to such part of the XMOS Confidential Information as the Licensee can show to the reasonable satisfaction of XMOS: (a) has become public knowledge other than through the fault of Licensee or a User; (b) was already known to Licensee prior to disclosure to it by XMOS without any obligations of confidentiality; (c) is subject to a valid court order, provided Licensee: (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 (d) has been received from a third party who has not directly or indirectly breached any duty or obligation of confidence. 5. Open Source Software. Open-source software included in the Software Release package is not Licenced under the terms of this Agreement, but is instead Licensed under the terms of the applicable open-source Licences which are included in the individual directories or software source files in the package. 6. Regulatory Compliance and Instructions. Licensee understands that the Software or portions thereof may not have received all regulatory approvals required by governmental authorities and standards organizations for finished products. Licensee is responsible for ascertaining and complying (and procuring that all Users ascertain and comply) with all applicable governmental regulations for the use of the Software in all appropriate jurisdiction. To the extent XMOS provides notice to the Licensee of additional instructions regarding the Software (such as regarding labelling or use of the Software generally), Licensee will (and will procure that all Users) strictly comply with all such instructions. 7. Warranties & Disclaimers. To the maximum extent permitted by applicable law, the Software is provided “as is” and “as available” with all faults and without warranty of any kind, and XMOS and its licensors (collectively XMOS for the purpose of this clause 6 and clause 7) hereby disclaim all warranties and conditions with respect to the Software either express, implied or statutory, including but not limited to, the implied warranties and/or conditions of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, quiet environment and no infringement of third party rights. Further XMOS does not warrant that the Software will meet your requirements, that the Software will be uninterrupted or error-free, that any defects or errors will be corrected, or that the Software will be compatible or work with any third party software or devices, other than the Devices. 8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, NEITHER XMOS NOR ITS LICENSORS SHALL BE LIABLE FOR ANY LOST REVENUE, PROFIT, CONTRACTS OR DATA, LOSS OF BUSINESS OPPORTUNITY OR DAMAGE TO REPUTATION, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE (OR ANY PART THEREOF), EVEN IF XMOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL XMOS'S LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED:$50. XMOS shall not under any circumstances whatsoever be liable to Licensee or any Users, whether in contract, tort (including negligence) for any breach of statutory duty, or otherwise, arising under or in connection with the Agreement including for: loss of profits, sales, business, or revenue; business interruption; loss of anticipated savings; loss or corruption of data or information; loss of business opportunity, goodwill or reputation; or any indirect or consequential loss or damage. Nothing in this Agreement shall limit or exclude XMOS’s liability for death or personal injury resulting from XMOS’ negligence; (b) fraud or fraudulent misrepresentation; and (c) any other liability that cannot be excluded or limited by English law. This Agreement sets out the full extent of XMOS’ obligations and liabilities in respect of the licence of the Software. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on XMOS. Any condition, warranty, representation or other term concerning the licence of the Software which might otherwise be implied into this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law. Notwithstanding the above, in the event of any claim for damages against XMOS under or in connection with this Agreement, such claim 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. 9. High Risk Activities. The Software is not designed or intended for use in conjunction with high risk, critical applications or technology, on-line control equipment in hazardous environments requiring fail-safe performance, including without limitation the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines, or weapons systems (collectively "high risk activities") in which the failure of the Software (or derived works from the use of the Software) could lead directly or indirectly to death, personal injury, or severe physical or environmental damage or loss of data. XMOS and its licensors specifically disclaim any express or implied warranties relating to use of the Software in connection with high risk activities. 10. Export. Licensee shall use the Software in accordance with export control laws and regulations applicable to the goods, countries and persons or entities that it is trading in or with. Licensee represents and undertakes that the Software will not be exported or re-exported to any person or country prohibited under European or US export control laws and regulations. Licensee shall indemnify XMOS against any claim or damages resulting from its conduct in contravention of the aforementioned export control laws and regulations. If delivery or download of the Software, is subject to the granting of an export or import licence or end-use statement by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Licensee shall contact XMOS immediately and provide full details immediately. Licensee shall indemnify XMOS against any claim or damages resulting from its failure to comply with the aforementioned export control laws and regulations. 11. Termination. XMOS may terminate this Agreement (including for the avoidance of doubt the licence granted) immediately by written notice if Licensee commits a material or persistent breach of this Agreement. If such material or persistent breach is capable of remedy, XMOS shall give 7 days’ written notice requiring remedy and in the event such breach fails to be remedied to XMOS’ satisfaction, XMOS may terminate this Agreement immediately. XMOS may also terminate this Agreement: (a) immediately on written notice to Licensee in the event a creditor or other claimant takes possession of, or a receiver, administrator or similar officer is appointed over any of the assets of Licensee; (b) immediately on written notice to Licensee in the event Licensee is subject to any voluntary arrangement with its creditors (other than for the purposes of solvent re-organisation) or becomes subject to any court or administration order or similar pursuant to any bankruptcy or insolvency law; (c) for convenience, on giving Licensee 7 days prior written notice at any time. Upon termination of this Agreement for any reason: (a) all rights granted to Licensee under this Agreement shall cease (save this shall not apply to any prior authorised use of the Software up to the date of termination); (b) Licensee must immediately cease all activities authorised by this Agreement; and (c) Licensee must immediately delete or remove the Software from all devices, storage and computer equipment in its possession, and immediately destroy or return to XMOS (at XMOS’ option) all copies of the Software and any documents then in its possession, custody or control and, in the case of destruction, certify to XMOS that Licensee has complied with the above. 12. General. 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). XMOS may, at any time, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over 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 Licensee. Licensee shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement. This Agreement and any document expressly referred to in it constitute the entire agreement between Licensee and XMOS. Licensee 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. 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. XMOS address for notices is: 5th Floor East, Programme, All Saints Street, Bristol, United Kingdom, BS1 2LZ, marked for the attention of the CFO. If XMOS needs to communicate with the Licensee, it shall contact the Licensee at the address provided to XMOS in any order information or at the Licensee’s principle place of business, marked for the attention of Legal/CEO. Notice shall be deemed received as follows: on the day delivered if personally delivered during normal business hours; and on the 5th business day following mailing by first class certified mail (or the equivalent) postage prepaid, addressed to the parties as above. Each party may change its address for notice or its designated recipient by informing the other party in writing of such change. The parties shall attempt in good faith to resolve any disputes. Any dispute relating to the performance by either party of its obligations under this Agreement (but excluding any dispute regarding breach of confidentiality or which may require injunctive relief below) shall be referred in the first instance to the CEO or a designated management representative of each party for resolution. If the CEO’s or designated management representatives cannot reach a mutually acceptable resolution within 14 days of referral, the dispute may be referred to arbitration at the agreement of the parties. To the extent that a breach of this Agreement by Licensee may result in irreparable damage to XMOS or its licensors, where XMOS and/or its licensors will not have an adequate remedy at law, in addition to any other remedies and damages available, Licensee acknowledges and agrees that XMOS and/or its licensors may immediately seek enforcement of this Agreement by means of specific performance or injunction. Licensee shall comply (and shall procure that all Users shall comply) with all national, state, and local laws and regulations governing the use of the Software in accordance with the terms of this Agreement. XMOS shall not be held liable to Licensee for any failure to fulfil its obligations under this Agreement, if such failure is due to acts of God, acts of civil or military authorities, fire or flood, epidemic war, extreme weather or other natural calamity, acts of governmental agencies or any other acts caused beyond the reasonable control of XMOS. If any provision of this Agreement is determined 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) determined 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. No delay or failure of either party to enforce any right or provision under this Agreement shall constitute a waiver of such right or of or any other right under this Agreement. Licensee agrees that XMOS shall, on 5 business days’ notice, be entitled to carry out an audit of Licensee’s and any Users compliance with the terms of this Agreement and Licensee agrees to reasonably cooperate (and procure that all Users reasonably cooperate) with XMOS during such audits. Notwithstanding anything to the contrary contained herein, (a) XMOS may only carry out such an audit once in any 12-month period during the term of this Agreement, (b) such audit shall be limited to only such documentation as is reasonably related to Licensee and any Users compliance with this Agreement. This Agreement, its subject matter and its formation, are governed by English law. XMOS and Licensee both agree that the courts of England will have exclusive jurisdiction in the event of any dispute relating to this Agreement. ENDS