License Agreements

By downloading and/or using any firmware or software from this website you are agreeing that you have authority to:

1. bind the licensee (as defined below); and
2. that the licensee agrees to be bound by these licence terms and conditions; and If the licensee does not wish to be bound by these terms and conditions, we will not licence the development kit to you and you must not download or use the VocalFusion software or use the development kit.

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 9th Floor, 107 Cheapside, London, EC2V 6DN (“XMOS”, “us” or ”we”).

The Agreement relates to the Development Kit which consists of the Devices defined below, which have been or will be supplied to the Licensee by XMOS under separate terms, and the Software, for installation on the Devices, the Third-Party Software and documentation, all capitalised terms as defined below (collectively known as the “Development kit”).

To load the Software to the Devices, Licensee will need to download and install certain XMOS Tools, available at www.xmos.com.

DEFINITIONS

Devices: means the xcore^® VocalFusion^® boards produced by XMOS.

Feedback: has the meaning given to it in clause 8.

Purpose: has the meaning given to it in clause 1.

Software: means the software downloaded by the User from this website, which includes the Third Party Software, customised for the Devices and any Updates.

Third Party Software: means the proprietary BeClear software owned by Philips International BV and proprietary TrulyHandsFree software owned by Sensory Inc and their respective updates, if any.

Updates: means any updates to the Software or Third-Party Software which XMOS makes available via www.xmos.com and which a User can download and install with the XMOS tools available on the site.

User(s): shall mean you, the Licensee, or any employee of the licensee who hasagreed to be bound by this Agreement and that registers on the XMOS website (www.xmos.com)

XMOS Confidential Information: has the meaning at clause 4.

IMPORTANT NOTICE TO ALL USERS:

This agreement assumes that we have already made the devices available to licensee.

Licensee will be given a user name when it registers on the XMOS website at www.xmos.com. Licensee will not be able to download the software unless it has a valid user name.

1. Scope of use

In consideration of Licensee agreeing to be bound by the terms of this Agreement, XMOS grants Licensee a non-exclusive, royalty free, non-transferable, non-sublicensable, licence to download the Software, install it on the Devices and use the Development kitworldwide solely for evaluating the Development kit, on the terms of this Agreement (the “Purpose”). No commercial right or licence is granted. Licensee may:

1. install and use the Development kit for its personal purposes (if Licensee is a consumer), or its internal business purposes (if Licensee is a business), only for Licensee’s sole use;
2. transfer the Development kitto other Users. This shall not include third parties, consultants and/or external advisors, vendors, manufacturers or suppliers, who should obtain a separate licence agreement;
3. transfer the Development kitfrom one computer to another provided the transfer is solely for Licensee’s use or pursuant to clause 1 (b);
4. make copies of the Development kit for back-up purposes only in conjunction with the Purpose;
5. use any documents and make copies of the documents as are reasonably necessary for the Purpose.

2. Restrictions

Except as expressly set out in this Agreement or as permitted by any local law, Licensee undertakes:

1. not to copy or reproduce the Development kit (or any part thereof) except where such copying is incidental or necessary for back-up or in accordance to clause 1 (4);
2. not to sell, distribute, sublicense, transfer or make available in any manner or means the Development kit to any third party (whether as part of Licensee’s products or on a standalone basis;
3. not to alter, modify, adapt, translate, disassemble, decompile, reverse-engineer, reverse assemble, attempt to derive source code or algorithm nature of the Development kit or create derivative works based on the whole or any part of the Development kit 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 of the Development kitwith another software program and/or Devices, and provided that the information obtained by Licensee during such activities:
   1. is used only for the purpose of achieving inter-operability of the Development kit with such other software program and/or the Devices; and
   2. is not disclosed or communicated to any third party;
   3. and is not used to create any software or Development kit which are substantially similar to the Development kit. Provided the above shall not prevent Licensee un-mounting the Devices from the mounting plate solely for the Purpose.
4. not decode, de-crypt, turn off, remove, circumvent or neutralise any security measures or protection within the Development kit;
5. not to remove any copyright notices and to include all copyright notices on all entire and partial copies Licensee makes of the Development kiton any medium and refer to this Agreement in such copies;
6. not to attempt to learn information about the internal architecture, algorithms, design, operation, manufacture, features or functionalities of the Development kitbeyond that information provided by XMOS;
7. not to produce its own version of the Third-Party Software;
8. not to perform any action with regard to the Third-Party Software in a manner that would require the Third-Party Software or any derivative works thereof, to be licensed under any open source terms. Such actions shall include:
9. combining the Third-Party Software or any derivative work thereof with any open source software, by means of incorporation or linking or otherwise; and
   1. using open source software to create a derivative work of the Third-Party Software;
   2. not making any representations, warranties or guarantees in relation to the Development kit or on behalf of XMOS or any of its licensors in relation to the Development Kit, Devices or any part(s) therein;
10. not using the Software or Third-Party Software, other than in conjunction with the Development Kit.

3. Intellectual property rights

XMOS does not sell, but it licenses the Development kit to the Licensee on the terms of this Agreement. Licensee acknowledges that, all intellectual property rights in the Development kit (including in the Third-Party Software) anywhere in the world belong to XMOS or its licensors.  Save as expressly stated herein all such intellectual property rights are expressly reserved and the disclosure under this Agreement shall not confer on Licensee any intellectual property or other rights in relation to the Development kit and/or XMOS Confidential Information. Without limitation, all intellectual property rights that are owned or controlled by XMOS at the commencement of this Agreement shall remain under the ownership or control of XMOS. 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.

4. Support

For the avoidance of doubt, XMOS shall have no obligation to provide support for the Development kit.

5. Confidentiality

Licensee will at all times maintain appropriate physical security of the Development kit.The Development kit and its use, including knowledge of or information about pre‐release features, capabilities, any findings, Feedback, features, errata or problems encountered by Licensee through use of the Development kit (including knowledge or information gained through the use of any test and measurement equipment) and any information derived from the use of the Development kit are hereby deemed “XMOS Confidential Information”. Licensee may 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 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.  Licensee shall not use the XMOS Confidential Information for any commercial, industrial or other purpose other than the Purpose. Licensee may disclose the XMOS Confidential Information or any part thereof, with the prior consent of XMOS, to any employee of Licensee who needs access to the Development kitand the XMOS Confidential Information in connection with the Purpose.  In such an event Licensee agrees to ensure, before such disclosure, that the employee in question is made aware of the confidential nature of the XMOS Confidential Information and understands that he/she is bound by conditions of secrecy no less strict than those set out here. Licensee agrees to monitor the use of the XMOS Confidential Information by these employees and to enforce their obligations of confidence at the request of XMOS. The obligations contained in this clause shall not apply, or shall cease to apply, to such part of the Development kitand the XMOS Confidential Information as the Licensee can show to the reasonable satisfaction of XMOS:

1. has become public knowledge other than through the fault of Licensee or an employee;
2. was already known to Licensee prior to disclosure to it by XMOS;
3. is subject to a valid court order, provided Licensee:
   1. 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
   2. minimises the amount of XMOS Confidential Information which is disclosed under the valid court order, whilst still complying with such court order; or
4. has been received from a third party who has not breached any duty or obligation of confidence.

6. Development kit features and capabilities

The Development kit may include pre‐release features, capabilities or errata which may not be available or accessible in XMOS’s commercial versions. XMOS makes no warranty or otherwise to release a commercial version of the Development kit. Inclusion of any features or capabilities, or development or support of a commercial version of the Development kit, is at XMOS’s sole discretion.

7. Regulatory compliance and instructions

Licensee understands that the Development kit 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 with all applicable governmental regulations for the use of the Development kit in the appropriate jurisdiction. To the extent XMOS provides notice to the Licensee of additional instructions regarding labelling or use of the Development kit, Licensee will strictly comply with all such instructions.

8. Feedback

LICENSEE IS NOT OBLIGED TO PROVIDE ANY FEEDBACK TO XMOS. If Licensee wishes to assist XMOS in identifying problems with and making improvements to the Development kit, Licensee may (at its sole discretion) provide suggestions, comments, or other feedback, including bugs, errors or other problems discovered during the evaluation or use of the Development kit (“Feedback”). If Licensee provides Feedback it grants to XMOS a non‐exclusive, irrevocable, worldwide, royalty‐free, perpetual licence under Licensee’s intellectual property rights to display, perform, copy, distribute, make, have made, make derivative works, use, amend, alter, sell, offer to sell, export and import Feedback within XMOS products, without reference to Licensee as the source and to use such Feedback within new versions of the Development kitand any associated products.

9. Warranties & disclaimers

XMOS has the right to enter this Agreement and to grant the licence granted in this Agreement. Save as provided above, theDevelopment kitis provided “As Is” for evaluation purpose only. XMOS is under no obligation to provide updates, upgrades, support, or maintenance of any kind under this Agreement. XMOS disclaims any and all warranties and guarantees, express, implied or otherwise, arising with respect to the Development kit, including but not limited to the warranty of merchantability, the warranty of fitness for a particular purpose, and any warranty of non-infringement of third-party intellectual property rights. XMOS neither assumes nor authorizes any person to assume for it any other liability. Licensee will use the Development kit at its own risk.

10. 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 Development kit (or any part thereof), even if XMOS has been advised of the possibility of such damages. In no event shall XMOS’ liability whether in contract, tort (including negligence), or otherwise exceed any fees paid by licensee for the Development kit. Licensee 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 relating thereto, that arise or result from licensee’s use of the Development kit.

XMOS shall not under any circumstances whatsoever be liable to Licensee, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement 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 our liability for death or personal injury resulting from XMOS’ negligence; fraud or fraudulent misrepresentation; 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 supply of the Development kit. 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 supply of the Development kitwhich 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 twelve (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. High risk activities

The Development kitis not designed or intended for use in conjunction with high risk, critical applications or technology and 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 Development kit(or derived works from the use of the Development kit) could lead directly to death, personal injury, or severe physical or environmental damage. XMOS and its licensors specifically disclaim any express or implied warranties relating to use of the Development kit in connection with high risk activities.

12. Export

Licensee shall use the Development kit 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 Development kitwill 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 for damages resulting from its conduct in contravention of the aforementioned export control laws and regulations.  If delivery of the Development kit, is subject to the granting of an export or import license 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 for damages resulting from its failure to comply with the aforementioned export control laws and regulations.

13. Termination

XMOS may terminate this Agreement 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 the licence and this Agreement immediately on providing Licensee no less than 7 days’ notice. XMOS may also terminate this Agreement:

1. 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;
2. 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;
3. on giving Licensee 7 days prior written notice at any time. Upon termination of this Agreement for any reason:
   1. all rights granted to Licensee under this Agreement shall cease;
   2. Licensee must immediately cease all activities authorised by this Agreement; and
   3. Licensee must immediately delete or remove the Development kitfrom all computer equipment in its possession, and immediately destroy or return to XMOS (at XMOS’ option) all copies of the Development kitand 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.

14. 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, 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, 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: Queen’s Quay, 33-35 Queen Square, Bristol, BS1 4LUmarked for the attention of CFO. If XMOS needs to communicate with Licensee, it shall contact Licensee at the address provided to XMOS in any order information or at 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 Injunction Relief below) shall be referred in the first instance to a designated management representative of each party for resolution. If the management representatives cannot reach a mutually acceptable resolution within fourteen (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. Both parties shall comply with all national, state, and local laws and regulations governing the use of the Development Kit 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 five business days’ notice, be entitled to carry out an audit of its compliance with the terms of this Agreement and Licensee agrees to reasonably cooperate with XMOS during such audits. Notwithstanding anything to the contrary contained herein,

1. XMOS may only carry out such an audit once in any 12-month period during the term of this Agreement,
2. such audit shall be limited to only such documentation as is reasonably related to Licensee’s 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 anydispute relating to this Agreement.

Last Updated: August 2018