uSens SDK Developer’s Agreement

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uSens SDK Developer’s Agreement

Last Changes to SDK Developer’s Agreement: March 10, 2017

This uSens SDK Developer’s Agreement (“SDK Agreement”) relates to the uSens System Development Kit and related software for use with uSens’ products including Fingo™ and Impression Pi™ hardware.  This SDK Agreement is between uSens, Inc., a Delaware corporation with its principal place of business located at 1741 Technology Drive, Suite #130, San Jose, CA 95110 (“uSens”, “we” or “us”) and the individual or entity (“Recipient” or “you”) that accepts the terms of this SDK Agreement.  Capitalized terms used but not defined where used have the meaning given them in the Definitions section herein.

uSens may collect personal information provided by you, your Authorized Users, and/or your End Users in connection with the SDK for purposes set out in uSens’ Privacy Policy (available at http://www.usens.com/Privacy).

By installing, accessing or otherwise using the SDK, or indicating agreement by action of software during installation, you accept the terms of this SDK Agreement.  Your agreement to these terms also binds your Authorized Users and your Organization.  IF YOU DO NOT AGREE TO THE TERMS OF THIS SDK AGREEMENT, DO NOT ACCEPT IT.  Before accepting this SDK Agreement, please carefully read it.

We reserve the right to change this SDK Agreement, the SDK or the uSens development and licensing program at any time in our sole discretion.  uSens may require that you either accept and agree to new terms of this SDK Agreement, or, if you do not agree to the new terms, cease or terminate your use of the SDK.  Your continued use of the SDK after changes to this SDK Agreement take effect will constitute your acceptance of the changes, except that, subject to your continued compliance with your obligations under a prior version of this SDK Agreement, you can continue to distribute versions of your Application created and first distributed under that prior version of this SDK Agreement and your End Users can continue using such versions of your Application.

1. Definitions

Application” and “Applications” means software developed by you that is intended for use in connection with a uSens Device or with uSens Software.

Authorized Users” means your employees, contractors, and members of your organization (for an educational institution, members include faculty, staff and registered students), who install, access or otherwise use the SDK.

End User” means your end user customer(s) or licensee(s).

Organization” means your company, educational institution, or other organization that might have Authorized Users.

Runtime Application” means portions of the uSens Software that is designed to be installed on computers or equipment of the End User for use in interaction with a uSens Device.

SDK” means, collectively, tools, APIs, sample code, software, documentation, other materials for developing Applications that comprise the uSens System Development Kit for use with uSens’ products including Fingo™ and Impression Pi™ hardware, and any updates to the foregoing that may be provided or made available to you by uSens via the uSens Developer Portal or otherwise.

uSens Developer Portal” means the web-based server that uSens designates, from time to time, as a site for developers to obtain SDK materials.

uSens Device” means a device or module supplied by uSens that the SDK supports.

uSens Non-Redistributable Materials” means portions of the SDK that are not specifically designated as being made available for incorporation into an Application and/or that are specifically designated in the SDK documentation or code as being non-redistributable.

uSens Redistributables” means portions of the SDK that we specifically designate in the SDK documentation as made available for incorporation into, or for distribution with, your Applications.

uSens Sample Code” means portions of the SDK we specifically designate in the SDK documentation as made available for use with your Applications in the original form supplied by us or as modified by you.

uSens Software” means software, in binary, object and/or source form, supplied by uSens that the SDK supports.

2. Development License

2.1.   Development License. Conditioned upon compliance with the terms and conditions of this SDK Agreement, uSens hereby grants you a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to (a) install and use the SDK on computers owned or controlled by you for the purpose of developing and testing your Applications; (b) incorporate any uSens Redistributables into your Application; (c) provide to End Users a copy of a Runtime Application; and (d) modify and incorporate any uSens Sample Code into your Application.  This license extends to your Authorized Users, but only if they each have written and binding agreements with you or your organization to protect against the unauthorized use and disclosure of the SDK consistent with the terms and conditions of this SDK Agreement.

2.2.   Restrictions. The licenses granted herein do not grant you any rights to publish, distribute, copy, or modify the SDK or create derivative works of the SDK unless explicitly granted herein.  The licenses granted herein do not grant you any rights to (yourself or by enabling others to) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code (other than uSens Sample Code), underlying ideas, techniques, or algorithms in the uSens Software, the uSens Device or any software that forms part of the SDK, nor attempt to circumvent any related security measures, except (a) to the extent any foregoing restriction is prohibited by applicable law, (b) as permitted by applicable law notwithstanding the foregoing restriction, or (c) to the extent as may be permitted by licensing terms of different licenses you may have as set forth in Section 5 of this SDK Agreement.

2.3.   No Alterations. You agree not to remove, obscure, or alter any proprietary rights notices or confidentiality notices within the SDK.  You also agree not to create your Application or other software to prevent or degrade the interaction of applications developed by others with the uSens Software.

2.4.   No Separate Use of Samples. The SDK may include images, video content, program code portions, and other types of content that are provided for illustration, instructional, or testing purposes.  You agree not to disseminate that content apart from its use with a uSens Device or uSens Software or encourage others to do so, without written permission from uSens.

2.5.   Updates. The terms of this SDK Agreement will apply to any updates, upgrades, modifications, enhancements, revisions, new releases or new versions (“Updates”) to the SDK that uSens may make available to you in connection with this SDK Agreement.  You agree that Updates may require you to change or update your Application, and may affect your ability to use, access or interact with the uSens Software, a uSens application store, and/or the SDK.

2.6.   Trademarks. You may indicate that your Application is “for use with” a uSens Device or is “enabled for use with” a uSens Device.  However, unless provided in a separate agreement between you and uSens, you may not otherwise use “uSens” or any trademark of uSens in connection with your Application or your Organization, or in any URL, product, service, name field or logos created by or for you.

3. Distribution License

Conditioned upon compliance with the terms and conditions of this SDK Agreement, uSens hereby grants you a limited, non-exclusive, revocable, non-transferable license (a) to copy and distribute (or have copied and distributed) the uSens Redistributables, but only when compiled with, incorporated into, or packaged with your Application, (b) to copy and distribute (or have copied and distributed) a Runtime Application, but only for use with one or more uSens Devices, (c) to make (but not have made), use, sell, offer for sale and import your Application, and (d) for your End Users to use your Application.  The license under this Section 3 does not extend to distribution of the uSens Non-Redistributable Materials.

4. Software Improvement Program; User Experience Processing

In order to improve uSens’ software and products and the user experience, we may collect, store, and process data that is provided to us by a Runtime Application related to how various parts of the Runtime Application are operating and being used (the “Software Improvement Program” or the SIP).  For example, the SIP might collect data (“Collected Data”) on how often certain features of the Runtime Application are used, how the features of the uSens Devices are operating, and which errors occur during use of the Runtime Application.  The Collected Data as part of the SIP might be used to diagnose performance issues and improve the reliability of the uSens Software.  The Collected Data will not be used by uSens, or disclosed to others, for marketing purposes.  The Collected Data will not be tied to any personally identifiable information of the user, but some identifiable data might be present incidental to the collection of the Collected Data, such as the IP address of equipment reporting the Collected Data.

Other data might be collected for the purposes of processing data to provide a current user experience, such as where hardware limitations prevent the processing from being performed entirely locally by the Runtime Application and data is provided to a remote processor (the “User Experience Processing” or the UEP).

The SIP and the UEP functionalities are built into the Runtime Application, but either or both of these functionalities can be disabled during installation of the Runtime Application by indicating so during installation.  Either or both of these functionalities can be disabled after installation, by changing the software preferences in the user interface of the Runtime Application.  While you have the option of separately disabling the collection of data for the SIP and for the UEP, disabling the collection of data for the UEP might limit what processes can be performed for the End User.

5. Open Source Materials, Other Licenses

The SDK may include software or other materials that are provided under a separate license agreement.  That separate license will govern the use of such software or other materials in the event of a conflict with this SDK Agreement.  Any such separate license agreement may be indicated in the license, notice, or readme files distributed with the applicable software or other materials or in related documentation.  For example, certain portions of the uSens Sample Code made publicly available by uSens via its uSens Developer Portal are licensed under the Apache 2.0 license.

6. Ownership of Intellectual Property

As between uSens and you, uSens owns all right, title and interest, including all intellectual property rights, in and to the SDK, other than any third party software or materials incorporated into the SDK, and you agree not to contest uSens’ ownership of any of the foregoing.  uSens agrees that uSens obtains no right, title or interest from you (or your licensors) under this SDK Agreement in, or to, any of your Applications, including any intellectual property rights which subsist in those Applications except as to uSens intellectual property incorporated into your Application and other intellectual property uSens had rights to aside from this SDK Agreement.

7. Payment for Use of SDK

No payments shall be owed by either party to the other for the license and rights granted herein.  Each party shall be responsible for any applicable taxes, fees, or expenses incurred by such party pursuant to this SDK Agreement.  Each party will retain any other revenue generated in connection with this SDK Agreement or any software or Application developed therefrom.  uSens reserves the right in the future to charge for use of the SDK. If uSens chooses to establish fees and payment terms for such use, uSens will notify you of such terms and you may elect to stop using the SDK rather than incurring such fees.

8. Feedback and Support

You may (but are not required to) provide feedback, comments and suggestions to uSens.  If you do provide feedback, comments and suggestions to uSens and do not have a written agreement with uSens otherwise, you hereby grant to uSens a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such feedback, comments and suggestions to use, disclose and exploit all such feedback, comments and suggestions for any purpose.

9. Your Warranties

In addition to your other obligations under this SDK Agreement, you warrant and agree that:

9.1.   You are at least 18 years of age.

9.2.   You have the right and authority to enter into this SDK Agreement on your own behalf and that of your Authorized Users, or if you are entering into this SDK Agreement on behalf of your Organization, you have the right and authority to legally bind your Organization and its Authorized Users.

9.3.   You agree to use the SDK only in accordance with all accompanying documentation, in the manner expressly permitted by this SDK Agreement.  You agree that your use of the SDK, and the marketing, sales and distribution of your Application will be in compliance with all applicable laws and regulations and all U.S. and local or foreign export and re-export restrictions applicable to the technology and documentation provided under this SDK Agreement (including privacy and data security laws and regulations).  You agree not to develop any Application that would be used to commit, or facilitate the commission of, a crime, or other tortious, unlawful, or illegal act.

9.4.   You acknowledge the SDK may allow you to develop Applications that enable the control of motorized or mechanical equipment, or other systems, machines or devices.  If you elect to use the SDK in such a way, you agree to take steps to design and test your Applications to ensure that your Applications do not present risks of personal injury or death, property damage, or other losses.  THE USENS DEVICE, THE USENS SOFTWARE, THE USENS REDISTRIBUTABLES AND OTHER SOFTWARE IN THE SDK MAY NOT ALWAYS FUNCTION AS INTENDED.  Therefore, you agree to design your Applications so that any failure of a uSens Device, the uSens Software, a uSens Redistributable and/or such other software does not cause personal injury or death, property damage, or other losses.

10. Indemnification

10.1. You agree to indemnify, hold harmless and, at uSens’ option, defend uSens and its affiliates and their respective officers, directors, employees, agents, and representatives harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable attorneys’ fees) incurred by them arising out of or relating to any third party claim (a) with respect to your Application, including products liability, privacy, or intellectual property infringement claims, or (b) based upon your negligence or willful misconduct or any breach or alleged breach of your representations, warranties, and covenants under this SDK Agreement.  In no event may you enter into any settlement or like agreement with a third party that affects uSens rights or binds uSens in any way, without the prior written consent of uSens.

10.2. If you choose to use the SDK, (i) you assume all risk that use of the uSens Device, the uSens Software, the uSens Redistributables and/or such other software by you or by any others causes any harm or loss, including to your End Users or to third parties, (ii) you hereby waive, on behalf of yourself and your Authorized Users, all claims against uSens and its affiliates related to such use, harm or loss (including, but not limited to, any claim that a uSens Device, the uSens Software, a uSens Redistributable or such other software is defective), and (iii) you agree to hold uSens and its affiliates harmless from such claims.

11. Warranty Disclaimer

THE SDK IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  USENS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SDK, INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND USENS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE.  USENS DOES NOT WARRANT THAT THE SDK WILL BE ERROR-FREE OR THAT IT WILL WORK WITHOUT INTERRUPTION.

12. Limitation of Liability

IN NO EVENT WILL USENS’ LIABILITY, OR THOSE OF ITS SUPPLIERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE SDK EXCEED ONE THOUSAND DOLLARS.  EXCEPT FOR INDEMNIFICATION OBLIGATIONS, OR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

13. Term and Termination

13.1. Term. This SDK Agreement will continue to apply until terminated as set out in this Section 13.

13.2. Termination by You. You may terminate this SDK Agreement by uninstalling and destroying all copies of the SDK that are in the possession, custody or control of you, your Authorized Users and your Organization.

13.3. Termination by uSens. uSens may at any time, terminate this SDK Agreement with you for any reason or for no reason in uSens’ sole discretion, including as a result of replacement of uSens’ SDK program with other programs, or non-compliance by you with the restrictions in Sections 2.2, 2.3, or 9 of this SDK Agreement.

13.4. Effect of Termination. Upon termination of this SDK Agreement, all rights granted to you under this SDK Agreement terminate and you must cease all use, and destroy all copies, of the SDK in your and your Authorized Users’ possession, custody or control, and, except as specifically set out in Section 13, cease your distribution of Applications.

13.5. Surviving Sections. Sections 1, 2.2, 2.3, 2.4, 2.6, 6, 7, 12, and 14.7 will survive termination of this SDK Agreement.  Termination of this SDK Agreement will not affect the right of your End Users who have downloaded your Application prior to termination to continue using it.

14. Miscellaneous

14.1. Assignment. You may not assign this SDK Agreement.  uSens may assign this SDK Agreement without your consent in connection with (a) a merger or consolidation of uSens or (b) a transaction that results in another entity or person owning substantially all of the assets of uSens.  In the event of an assignment by uSens, this SDK Agreement will inure to the benefit of, and be binding upon, the parties and permitted assigns.

14.2. Waiver; Severability. The failure of a party to enforce any rights under this SDK Agreement will not be deemed a waiver of those rights.  The rights and remedies of the parties in this SDK Agreement are not exclusive and are in addition to any other rights and remedies provided by law.  If any provision of this SDK Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this SDK Agreement will remain in full force and effect.

14.3. Reservation. All licenses not expressly granted in this SDK Agreement are reserved and no other licenses, immunity or rights, express or implied, are granted by uSens, by implication, estoppel, or otherwise.  The software in the SDK is licensed, not sold.

14.4. Export Restrictions. The uSens Software may be subject to United States export laws and regulations.  You agree to comply with all domestic and international export laws and regulations that apply to the uSens Software, including restrictions on destinations, end users, and end use.

14.5. Governing Law and Jurisdiction. This SDK Agreement will be exclusively governed by, and construed under, the laws of the State of California, without reference to or application of rules governing choice of laws.  All disputes arising out of, or related to, this SDK Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara, California and you hereby consent to such jurisdiction.  However, uSens may apply to any court or tribunal worldwide, including, but not limited to, those having jurisdiction over you or your Authorized Users, to seek injunctive relief.

14.6. Relationship of the Parties. This SDK Agreement does not create any agency, partnership, or joint venture relationship between uSens and you.  This SDK Agreement is for the sole benefit of uSens and you (and indemnified parties), and no other persons will have any right or remedy under this SDK Agreement.

14.7. Notice. The address for notice to uSens under this SDK Agreement is:

uSens Inc.
c/o Business Development Office
1740 Technology Drive #260
San Jose, CA 95110

uSens may provide you notice under this SDK Agreement by email or other electronic communication or by posting communications to its development community on the uSens Developer Portal.  You consent to receive such notices in any of the foregoing manners and agree that any such notices by uSens will satisfy any legal communication requirements.

14.8. Entire Agreement. This SDK Agreement is the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter.


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