INTEL® COMMON CONNECTIVITY FRAMEWORK (CCF)
SOFTWARE DEVELOPMENT KIT (SDK)
LICENSE AND SERVICES AGREEMENT
PLEASE READ THIS INTEL CCF SDK LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING OR USING THE CCF TECHNOLOGY (AS DEFINED BELOW). BY CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING OR USING THE CCF TECHNOLOGY, YOU OR YOUR EMPLOYER OR OTHER ENTITY FOR WHOSE BENEFIT YOU ACT (“LICENSEE”) ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT" BUTTON AND YOU MAY NOT COPY, INSTALL OR USE THE CCF TECHNOLOGY.
THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN LICENSEE AND INTEL CORPORATION (“INTEL”), AND APPLIES TO ANY UPDATES, UPGRADES, OR NEW RELEASES OR VERSIONS OF THE CCF TECHNOLOGY, UNLESS SUCH UPDATES, UPGRADES, AND NEW RELEASES AND VERSIONS ARE SUPPLIED BY INTEL UNDER SEPARATE OR ADDITIONAL TERMS AND CONDITIONS.
You may not use the CCF Technology and may not accept the Agreement if you are a person barred from receiving the CCF Technology under the laws of the United States or other countries including the country in which you are resident or from which you use the CCF Technology.
If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the CCF Technology on behalf of your employer or other entity.
The CCF Technology enables Applications (as defined below) to connect using various peer to peer supported transports, including direct device to device connections, local area network connections, as well as an Intel hosted Internet-based cloud transport (“CCF Cloud Service”). To enable and use the CCF Cloud Service, Licensee must also agree to the Intel® Cloud Services Terms and Conditions found at http://intelisd.mashery.com/API_Terms_of_Use. The CCF Cloud Service constitutes “Services” as that term is defined in the Cloud Services Terms and Conditions, and any use of the CCF Cloud Service is subject to the Intel Cloud Services Terms and Conditions, in addition to the terms and conditions of this Agreement, including the fees described in Section 5.4 of this Agreement.
1. DEFINITIONS. Whenever capitalized in this Agreement:
1.1. “Application(s)” means one or more software programs developed by Licensee in compliance with the documentation and the program requirements for Intel’s Common Connectivity Framework, including bug fixes, updates, upgrades, modifications, new releases and new versions of such software programs.
1.2. “Authorized Derivative” means a derivative work of any Source Code provided or otherwise made available by Intel under this Agreement, or any addition, deletion or other modification to any such Source Code, within the scope of 17 U.S.C. Section 101 and that is approved by Intel prior to creating any such derivative work or performing any such addition, deletion or other modification.
1.3. “Binary Code” means the executable, binary form of computer programming code derived from Source Code or an Authorized Derivative.
1.4. “CCF Cloud Service” has the meaning defined above.
1.5. “CCF Manager” means the end user management console application provided or made available by Intel for use by Licensee in connection with Application development, but does not include any Open Source Software or any other software that is subject to an agreement, obligation, or license (whether or not accompanying the software) intended to supersede this Agreement.
1.6. “CCF Technology” means the SDK and related software and technology, including without limitation CCF Manager.
1.7. “Development Keys” means the cryptographic keys (including Private Keys) provided by Intel as part of the SDK.
1.8. “End User” means a purchaser, recipient or any other user of a mobile computing device who does not resell the device.
1.9. “Fees” means the fees payable by Licensee for use of the CCF Cloud Service.
1.10. “Keys” means cryptographic keys and includes without limitation Development Keys, Production Keys, and Private Keys.
1.11. “Licensed Patent Claims” means the claims of Intel’s patents that are necessarily and directly infringed by the reproduction and distribution of CCF Manager and those portions of the SDK that is authorized in Section 2.1(a) of this Agreement, when CCF Manager and those portions of the SDK are in their unmodified form as provided or otherwise made available by Intel to Licensee and not modified or combined with anything else. Licensed Patent Claims are only those claims that Intel can license without paying, or getting the consent of, a third party.
1.12. “Open Source Software” means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software: (a) be disclosed or distributed in Source Code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge. Open Source Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Source License (SISL); (vii) the Apache Software license; and (viii) the Common Public License (CPL). The Open Source Software components associated with the SDK and their corresponding license terms may be found in one or more of: (A) text files associated with the SDK; (B) within the Source Code portions of the SDK; or (C) within the Source Code of the Open Source Software that is provided with the SDK.
1.13. “Private Key” means the cryptographic private key provided or made available by Intel and associated with Development Keys or Production Keys, as applicable.
1.14. “Production Keys” means the cryptographic keys (including Private Keys) made available by Intel at http://cloudapi.intel.com/, or as otherwise directed by Intel.
1.15. “Published API(s)” means the application programming interface(s) contained in the SDK and documented by Intel.
1.16. “Redistributable Code” means the Binary Code of: (a) CCF Manager; and (b) those components of the SDK and related software which are expressly identified in the documentation for the SDK and related software as redistributable.
1.17. “Source Code” means a form in which computer programming code logic is easily deduced by a human being with skill in the art.
1.18. “SDK” or “Software Development Kit” means the software (in Source Code or Binary Code), documentation, applications, sample code, simulators, tools, libraries, APIs, data, files, and other materials provided or made available by Intel for use by Licensee in connection with Application(s) development, and includes any updates, upgrades, modifications, bug fixes, and new releases and versions of any of the foregoing materials that may be provided or made available by Intel, but does not include the CCF Cloud Service or any Open Source Software or any other software that is subject to an agreement, obligation, or license (whether or not accompanying the software) intended to supersede this Agreement.
1.19. “Transaction Taxes” means all taxes applicable to the sale or the purchase of access to and use of the CCF Cloud Service, including sales and use taxes, value added taxes, and other charges such as duties, customs, tariffs, imposts, and government imposed surcharges but excluding income taxes or taxes based on gross revenues or gross receipts.
2. LICENSES and RESTRICTIONS.
2.1. License Grants. Subject to the terms and conditions of this Agreement, Intel hereby grants to Licensee a non-exclusive, non-sublicensable, non-transferable, royalty-free, revocable, and worldwide license during the Term of this Agreement: (a) under Intel’s copyrights to: (i) internally reproduce the SDK and CCF Manager, and internally reproduce and modify any Source Code included in the SDK to internally create and internally reproduce Authorized Derivatives, in each case solely for the purpose of Licensee’s internal development of Application(s) for computing devices supported by the CCF Technology; (ii) reproduce and distribute to End Users Redistributable Code, and any Authorized Derivatives of any Redistributable Code, solely when integrated with Applications and for execution by a computing device supported by the CCF Technology, and pursuant to a license agreement with terms and conditions at least as restrictive as those contained in the Intel End User Software License Agreement contained in Exhibit A; (iii) reproduce and distribute to End Users a Binary Code representation of CCF Manager, solely when integrated for use with Applications and for execution on a Windows platform, and pursuant to a license agreement with terms and conditions at least as restrictive as those contained in the Intel End User Software License Agreement contained in Exhibit A; (b) under Intel’s Licensed Patent Claims to: (i) reproduce the SDK and CCF Manager internally only; (ii) use the SDK and CCF Manager internally only; and (iii) offer to distribute, and distribute, but not sell, the CCF Manager and Redistributable Code under the license under Intel’s copyrights granted in Section 2.1(a) above, but only under the terms and conditions of that license under Intel’s copyrights and not as a sale: (A) provided, however, that Licensee may only distribute the CCF Manager and Redistributable Code to End Users and only pursuant to an agreement having terms and conditions at least as restrictive as those contained in Intel’s End User Software License Agreement contained in Exhibit A, and only for use in mobile computing devices (and in the case of CCF Manager only on a Windows platform); and (B) provided, further, that the license under the Licensed Patent Claims does not and will not apply to any modifications to, or derivative works (including without limitation Authorized Derivatives) of the CCF Technology, whether made by or on behalf of Licensee, any of Licensee’s customers (which, for all purposes under this Agreement, will mean either a customer or a distributor), or any other third party even if the modifications and derivative works are permitted under Section 2.1(a) above. The consideration under this Agreement is only for the licenses that Intel expressly grants above. Any other rights including, but not limited to, additional patent rights, will require an additional license and additional consideration. Nothing in this Agreement requires or will be treated to require Intel to grant any additional license. Licensee acknowledges that an essential basis of the bargain in this Agreement is that Intel grants Licensee no licenses or other rights including, but not limited to, patent, copyright, trade secret, trademark, trade name, service mark or other intellectual property licenses or rights with respect to the CCF Technology and associated documentation, by implication, estoppel or otherwise, except for the licenses expressly granted above. Specifically, except for the licenses that Intel expressly grants above, Intel grants no licenses or other rights, expressly or by implication, estoppel or otherwise, to: (1) make, use, sell, offer for sale, or import modifications or derivative works of the CCF Technology; (2) sell or offer to the sell the CCF Technology; (3) combine the CCF Technology or modified versions or derivative works of the CCF Technology with other items or to use any such combination; or (4) any claims of any patents, patent applications, or other patent rights of Intel other than the Licensed Patent Claims. Licensee acknowledges that there are significant uses of the CCF Technology in their original, unmodified and uncombined form. The consideration for the licenses in this Agreement reflects Intel’s continuing right to assert patent claims against any modifications or derivative works (including, without limitation, error corrections and bug fixes) of, or combinations with, the CCF Technology that Licensee or third parties make that infringe any Intel patent claim.
2.2. General License Restrictions. All right, title and interest in and to the CCF Technology and associated documentation are and will remain the exclusive property of Intel and its suppliers, as applicable. Unless expressly permitted under Section 2.1 of this Agreement, Licensee will not, and will not allow any third party to: (a) use, reproduce, or distribute the CCF Technology or associated documentation; (b) modify, adapt, enhance, disassemble, decompile, reverse engineer, change or create derivative works of the CCF Technology; (c) use or make the CCF Technology available for the use or benefit of third parties; or (d) alter, obscure, block, or otherwise interfere with any application programming interfaces or functionality available in the SDK or CCF Manager. Licensee must use commercially reasonable efforts to protect and retain within Licensee Application(s) at all times any Private Key provided or made available by Intel. Except as expressly permitted under Section 2.1 of this Agreement, Licensee will not allow the CCF Technology and associated documentation to be accessed or used by third parties. Notwithstanding the foregoing, Licensee’s authorized consultants and subcontractors may access the CCF Technology and associated documentation where the access is necessary to their performing services on Licensee’s behalf consistent with the licenses granted to Licensee under this Agreement, provided: (i) Licensee first requires those consultants and subcontractors to sign written agreements obligating them to observe the same restrictions concerning the CCF Technology and associated documentation as are contained in this Agreement; and (ii) Licensee remains fully liable to Intel for the actions and inactions of those consultants and subcontractors.
2.3. Additional License Restrictions; Development Keys and Production Keys. As a further condition to the licenses granted by Intel in this Agreement Licensee is only licensed to: (a) reproduce Development Keys pursuant to Section 2.1(a)(i) solely for the purpose of Licensee’s internal development of Applications; and (b) reproduce and distribute Production Keys pursuant to Section 2.1 solely for the purposes of enabling Applications to access the CCF Cloud Service. Intel may revoke Keys provided or made available by Intel to Licensee in conjunction with any alpha or beta versions of the CCF Technology, and Licensee acknowledges and agrees that revocation of a Key may disable the functionality of Licensee’s Applications.
2.4. Modification and Support. Intel or its suppliers may make changes to the CCF Technology or the CCF Cloud Service, or to items referenced therein, at any time and without notice. Intel may provide support for the CCF Technology and CCF Cloud Service, including the provision of updates, upgrades, bug fixes, new releases or new versions of the CCF Technology or CCF Cloud Service, at times and in manners and amounts at its sole discretion. If Intel notifies Licensee that an update, upgrade, bug fix, new release or new version is available or in its discretion provides Licensee with any of the foregoing that Intel designates as ‘critical’ or with a similar designation or that addresses security, safety, or privacy, Licensee agrees to distribute that update, upgrade, bug fix, new release or new version, and to stop distributing the previous update, upgrade, bug fix, release or version of the CCF Technology, in Applications in accordance with this Agreement within thirty (30) days after notice from Intel. Licensee acknowledges that failure to do so may result in the partial or complete disablement of the functionality of Licensee’s Applications.
2.5. Licenses from Licensee to Intel. Licensee hereby grants to Intel and its affiliates and their respective independent contractors a non-exclusive, worldwide, perpetual, royalty-free license under Licensee’s intellectual property rights embodied in Licensee’s Applications to reproduce and use Licensee’s Applications internally for the purpose of testing and evaluating Licensee’s Applications, and to publicly display, publicly perform, and reproduce and use Licensee’s Applications internally and externally in any public or private venue at any time, for the purpose of testing, evaluating, and demonstrating Licensee’s Applications. For greater clarity, demonstrations of Licensee’s Applications may be held in any public or private venue at any time, and Intel shall not be required to obtain permission from Licensee or to execute a non-disclosure agreement to conduct such demonstrations of Licensee’s Applications. Licensee will provide Intel with a copy of the latest version of Licensee’s Applications upon request.
2.6. Open Source Software. Licensee must not subject the CCF Technology, in whole or in part, to any license obligations associated with Open Source Software, including combining or distributing the CCF Technology with Open Source Software in a manner that subjects Intel or any portion of the CCF Technology to any license obligations of Open Source Software.
2.7. Feedback and Modifications. To ensure Intel’s freedom to operate and to continue to develop the CCF Technology and CCF Cloud Service, Licensee agrees to grant and does hereby grant to Intel and its affiliates a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up and transferable license, with the right of sublicense, to and under any copyrights, trade secrets, patents and any other Licensee intellectual property rights, whether perfected or not, to publicly perform, publically display, reproduce, use, make, have made, sell, offer for sale, distribute, import, create derivative works of and otherwise exploit: (a) any comments, suggestions, descriptions, ideas or any other feedback provided by or on behalf of Licensee on the CCF Technology and CCF Cloud Service; and (b) to any derivative works, including Authorized Derivatives, created from or otherwise including the CCF Technology.
2.8. No Other Licenses. Except as otherwise expressly provided above, neither party grants any express or implied rights under either party’s patents, copyrights, trade secrets, or other intellectual property rights, whether directly or by implication, inducement, estoppel, or otherwise.
3. THIRD PARTIES. Licensee agrees that to the extent Licensee uses the SDK to develop Applications that access data, content or resources provided by a third party, Intel is not responsible for those Applications, data, content, or resources. Licensee understands that all data, content or resources which Licensee or End Users may access through Applications are the sole responsibility of the person from which they originated and that Intel is not liable for any loss or damage that Licensee or End Users may experience as a result of the use or access of any of Applications, data, content, or resources. Data, content, and resources accessed by Applications may be protected by intellectual property rights which are owned by the providers of such data, content, and resources (or by other persons or companies on their behalf). Licensee must not modify, rent, lease, loan, sell, distribute, create derivative works based on, or otherwise use such data, content, or resources (either in whole or in part) unless Licensee has been specifically given permission to do so by the relevant owners. Licensee acknowledges that Licensee’s use of Applications, data, content, or resources may be subject to separate agreements between Licensee and relevant third parties.
4. DATA PRIVACY. Licensee must protect the privacy and legal rights of End Users. If End Users provide Licensee with user names, passwords, or other login information or personal information, Licensee must make End Users explicitly aware that the information will be available to Licensee’s Applications, and Licensee must provide legally adequate privacy notices and protections for those End Users. If Licensee’s Applications store personal or sensitive information provided by End Users, Licensee must ensure that Licensee’s Applications do so securely. If the End User provides Licensee’s Applications with Intel account information, Licensee’s Applications may only use that information to access the End User's Intel account when, and for the limited purposes for which, the End User has given Licensee permission to do so. Applications that offer location-based services or functionality must notify and obtain consent from an End User before his or her location data is collected, transmitted or otherwise used by Licensee’s Applications. Licensee must display, and must ensure that each End User affirmatively accepts, the following statement prior to installation or use of each Licensee Application: “This application uses Intel services and shares information with Intel. For more detail please see the Intel Online Privacy Notice located at http://www.intel.com/privacy and the following FAQ specific to the Intel Identity Services: https://api.intel.com/identityui/FAQ.”
5. PROGRAM REQUIREMENTS; FEES. Any Applications developed using the SDK must comply with the criteria and requirements published or otherwise made available to Licensee by Intel from time to time, including without limitation the following, as they may be modified by Intel from time to time.
5.1 Published APIs. Applications must use only Published APIs and not other APIs, and only in the manner prescribed by Intel.
5.2 User Interface and Data. Any form of End User or device data collection, or image, picture or voice capture or recording performed by Applications (collectively “Recordings”), and any form of End User data, content or information processing, maintenance, uploading, syncing, or transmission performed by Applications (collectively "Transmissions") must comply with all applicable privacy laws and regulations as well as any Intel program requirements related to such aspects, including but not limited to any notice or consent requirements. In particular, a reasonably conspicuous visual indicator must be displayed to the End User as part of each Application to indicate that a Recording is taking place.
5.3 Content and Materials. If Licensee’s Applications include or will include any content, Licensee must either own all such content or have permission from the content owner to use it in Licensee’s Application. Licensee must use the SDK and develop Applications only for purposes that are permitted by: (a) this Agreement; and (b) all applicable laws, regulations, and generally accepted practices and guidelines in all applicable jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
5.4 CCF Cloud Service Fees. The Fees payable by Licensee for use of the CCF Cloud Service are found at https://software.intel.com/ccf-developer. Fees are exclusive of all Transaction Taxes, which Licensee must pay. If Intel is required by law to collect Transaction Taxes from Licensee, Licensee must pay the Transaction Taxes to Intel, in addition to all other amounts payable by Licensee. Each party is responsible for its own respective income taxes or taxes based on gross revenues or gross receipts. Intel may invoice Licensee for Fees on or at any time after the date CCF Cloud Service are made available by Intel to Licensee or a Licensee Application. All amounts invoiced by Intel are due within thirty (30) days from the date of invoice, without any offset, counterclaim, holdback or deduction. Licensee must reimburse Intel on demand for all expenses incurred by Intel (including reasonable attorneys’ fees and costs) with respect to any delinquent payment. Overdue amounts bear interest at the rate of the lesser of 1.5% per month or the highest lawful monthly rate, accrued and compounded from the date until paid.
6. INDEMNITY. Licensee will indemnify and hold harmless, and at Intel’s option defend, Intel and its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits, or proceedings, as well as any and all associated losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees), arising out of or in connection with: (a) Licensee’s use of the SDK or CCF Cloud Service; (b) any allegation that any Application or its use infringes or misappropriates any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person (including combinations of any Applications with other technology) or defames any person or violates their rights of publicity or privacy; and (c) any non-compliance by Licensee with this Agreement. The foregoing indemnity and defense obligations of Licensor are subject to the following conditions: (i) Intel will promptly notify Licensor of any such claim of which it has notice (provided that Intel’s failure to provide such notice will not release Licensor from any of its obligations in this Section 6); (ii) Intel will, at Licensor’s sole cost and expense, have sole control of the defense and settlement of any such claim, even if Intel requests that Licensor defend or otherwise participate in the defense or settlement of such claim; (iii) Licensor will not, without Intel’s prior written consent, settle or compromise any such claim; and (iv) Licensor must provide Intel, at Licensor’s sole cost and expense, all information and assistance required in defending and settling any such claim.
7. DISCLAIMERS. INTEL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE OR COURSE OF DEALING, RELATING TO THE CCF TECHNOLOGY AND CCF CLOUD SERVICE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES WITH RESPECT TO ANY SDK, AND FURTHER INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE CCF TECHNOLOGY AND CCF CLOUD SERVICE. INTEL DOES NOT WARRANT THAT THE CCF TECHNOLOGY OR CCF CLOUD SERVICE SHALL MEET LICENSEE’S, ANY END-USERS’, OR ANY OTHER THIRD PARTY’S REQUIREMENTS, OR THAT THE OPERATION OF THE CCF TECHNOLOGY OR CCF CLOUD SERVICE SHALL BE UNINTERRUPTED OR ERROR FREE.
ADDITIONALLY, INTEL MAKES NO WARRANTIES WITH RESPECT TO AND WILL HAVE NO LIABILITY (OTHER THAN AS EXPRESSLY SET OUT IN SECTION 8) TO LICENSEE FOR: (A) ANY DEFECTS OR OMISSIONS IN THE CCF TECHNOLOGY OR CCF CLOUD SERVICE; (B) ANY INABILITY OF LICENSEE TO INSTALL OR USE THE CCF TECHNOLOGY OR CCF CLOUD SERVICE; OR (C) ANY CLAIM OF LICENSEE, ANY END USER, OR ANY OTHER THIRD PARTY WITH RESPECT TO MOBILE COMPUTING DEVICES ARISING OUT OF THE USE OF THE CCF TECHNOLOGY OR CCF CLOUD SERVICE. INTEL MAKES NO WARRANTY WITH RESPECT TO DEFECTIVE CONDITIONS OR NON-CONFORMITIES RESULTING FROM LICENSEE USE, MISUSE, INCORRECT INSTALLATION, MISHANDLING, ACCIDENT OR ABUSE OF THE CCF TECHNOLOGY OR CCF CLOUD SERVICE, OR FAILURE OF LICENSEE TO APPLY INTEL SUPPLIED MODIFICATIONS, DIRECTIONS, UPDATES OR CORRECTIONS TO THE CCF TECHNOLOGY OR CCF CLOUD SERVICE.
8. LIMITATION OF LIABILITY. EXCEPT FOR INTEL’S OBLIGATION TO PROVIDE CCF CLOUD SERVICE (TO THE EXTENT LICENSEE HAS PAID FEES), FOR WHICH LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY INTEL WILL BE A REFUND BY INTEL OF ANY APPLICABLE FEES PAID BY LICENSEE, NEITHER INTEL OR ITS AFFILIATES (OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) OR SUPPLIERS SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT (INCLUDING THE USE OF OR INABILITY TO USE THE CCF TECHNOLOGY OR CCF CLOUD SERVICE), EVEN IF INTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE).
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence upon the earlier of Licensee’s downloading, installation or other use of the CCF Technology or CCF Cloud Service, and will remain valid until terminated by either Licensee or Intel in accordance with this Agreement (“Term”).
a. Intel may immediately terminate this Agreement, and revoke any or all Keys or CCF Cloud Service without notice, if: (a) Licensee or any Licensee authorized consultants or subcontractors fail to comply with any provisions of this Agreement; (b) Intel is required to do so by law; (c) the partner with whom Intel offered certain parts of the CCF Technology (such as APIs) to Licensee has terminated its relationship with Intel or ceased to offer certain parts of the CCF Technology to Licensee; or (d) Intel decides to no longer provide the CCF Technology or certain parts of the CCF Technology or CCF Cloud Service to users in the country in which Licensee is resident or from which Licensee uses the service, or the provision of the CCF Technology or CCF Cloud Service to Licensee by Intel is, in Intel’s sole discretion, no longer commercially viable.
b. Either party may terminate this Agreement for its convenience, for any or no reason, effective five (5) days after providing the other party with written notice of its intent to terminate.
9.3 Effect of Termination, Survival. Upon any termination of this Agreement, Licensee must immediately cease all use of the CCF Technology and CCF Cloud Service and erase and destroy all copies of the CCF Technology and all copies of Intel Confidential Information in Licensee and Licensee’s authorized subcontractors’ and consultants’ possession or control. Licensee must provide Intel with written certification of such destruction upon Intel’s request. Intel will not be liable, whether for compensation, indemnity, damages of any sort, or otherwise, as a result of terminating this Agreement in accordance with its provisions, and termination of this Agreement will be without prejudice to any other right or remedy Intel may have, now or in the future. Sections 1, 2.5-2.8, 3-8, 9.2, 9.3, 10 and 11 will survive any termination of this Agreement. In addition, any provision of this Agreement which by its express term or nature would survive termination or expiration of this Agreement will also survive the termination or expiration of this Agreement.
10. UNAUTHORIZED USE; NO OBLIGATION. THE CCF TECHNOLOGY AND CCF CLOUD SERVICE ARE NOT DESIGNED, INTENDED, OR AUTHORIZED FOR USE IN ANY TYPE OF SYSTEM OR APPLICATION IN WHICH THE FAILURE OF THE CCF TECHNOLOGY OR CCF CLOUD SERVICE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR (E.G. MEDICAL SYSTEMS, LIFE SUSTAINING OR LIFE SAVING SYSTEMS). Should Licensee use the CCF Technology or CCF Cloud Service for any such unintended or unauthorized use, Licensee shall indemnify and hold harmless Intel and its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits, or proceedings, as well as any associated losses, liabilities costs, damages, and expenses (including reasonable attorney’s fees), arising out of or in connection with any product liability, personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that Intel was negligent regarding the design or manufacture of or information relating to the CCF Technology or CCF Cloud Service. Intel is under no obligation to develop, distribute, or license any subsequent versions of any CCF Technology or CCF Cloud Service (including any “generally available” or similar versions). Licensee acknowledges that significant changes (such as changes to or elimination of functionality, including APIs) may be made to future versions of the CCF Technology and CCF Cloud Service, and that the CCF Technology and CCF Cloud Service may contain bugs or other errors and may lack certifications and regulatory approvals.
11.1 Governing Law and Jurisdiction. All matters arising out of or related to this Agreement, including without limitation all matters connected with its performance, shall be construed, interpreted, applied and governed in all respects in accordance with the laws of the United States of America and the State of Delaware, without reference to conflict of laws principles. All disputes and litigation arising out of or related to this Agreement, including without limitation matters connected with its performance, shall be subject to the exclusive jurisdiction of the courts of the State of Delaware or of the Federal courts sitting therein. Each Party hereby irrevocably submits to the personal jurisdiction of such courts and irrevocably waives all objections to such venue.
11.2 Audit. Intel will have the right to inspect or have an independent auditor inspect Licensee’s relevant records to verify compliance with the terms and conditions of this Agreement, including payment of all Fees and other amounts. Audit rights shall be limited to two (2) times per calendar year, upon reasonable prior notice, and during business hours. Each party shall bear its own costs associated with any audit, provided that if any such audit demonstrates any underpayments by Licensee, Licensee must bear the costs of such audit and immediately pay to Intel the full amount of all such underpayments. Licensee shall provide reasonable access to Licensee facilities for Intel or its independent auditor to conduct such audit.
11.3 Assignment. Licensee may not assign or otherwise transfer this Agreement or any right or obligation hereunder to a third party, expressly, through merger or acquisition, by operation of law or otherwise, without the prior written consent of Intel, and any attempt to do so without Intel’s prior written consent will be null and void. Intel may assign or otherwise transfer this Agreement or any right or obligation hereunder to a third party, expressly, through merger or acquisition, by operation of law or otherwise, without the prior written consent of Licensee.
11.4 Relationship of Parties. The parties hereto are independent contractors. No party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party. Nothing in this Agreement will be construed to create a partnership, joint venture, employment or agency relationship between the parties.
11.5 General Notices. All notices required or permitted to be given hereunder shall be in writing, shall make reference to this Agreement, and shall be delivered by hand, or dispatched by prepaid courier or by registered or certified mail, postage prepaid, to the address specified in Licensee registration to access this Agreement, or if no address is specified in such Licensee registration then to any address published by Licensee. Such notices shall be deemed served when received by addressee or, if delivery is not accomplished by reason of some fault or omission of the addressee, when tendered for delivery. Any party may give written notice of a change of address and, after notice of such change has been received, any notice or request shall thereafter be given to such party at such changed address.
11.6 Waiver. Failure by any party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement.
11.7 Severability. If any provision of this Agreement is determined to be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
11.8 Export Control. The CCF Technology is subject to United States export laws and regulations. Licensee must comply with all domestic and international export laws and regulations that apply to the CCF Technology. These laws include restrictions and destinations, end users and end use.
11.9 Injunctive Relief. It is understood and agreed that money damages might not be a sufficient remedy for a breach of this Agreement by Licensee and that Intel may be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach.
11.10 Rights and Remedies. The rights and remedies of the parties herein are in addition to any other rights and remedies provided by law or in equity.
11.11 Compliance with Laws and Rules. Licensee must comply with all national, state, and local laws and regulations governing the development, manufacture, transportation, import, export, or sale of Licensee’s Applications and its performance under this Agreement.
11.12 U.S. Government Restricted Rights. The technical data and computer software covered by this Agreement is a “Commercial Item,” as such term is defined by the FAR 2.101 (48 C.F.R. 2.101) and is “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS 227.7202 (48 C.F.R. 227.7202), as applicable. This commercial computer software and related documentation is provided to end users for use by and on behalf of the U.S. Government, with only those rights as are granted to all other end users under the terms and conditions herein. Use for or on behalf of the U.S. Government is permitted only if the party acquiring or using this software is properly authorized by an appropriate U.S. Government official. This use by or for the U.S. Government clause is in lieu of, and supersedes, any other FAR, DFARS, or other provision that addresses Government rights in the CCF Technology contemplated by this Agreement.
11.13 Notice of Misuse. If Licensee becomes aware of any compromise, misappropriation or misuse of any Private Key, Licensee must immediately notify Intel and disclose to Intel any known details of such act. Notifications required under this Section 11.13 should be mailed to:
Intel MCG Legal
2200 Mission College Blvd M/S RNB 4-151
Santa, Clara, CA 95054
United States of America
Post Contracts Management
1900 Prairie City Rd
Folsom CA 95630
Attn: Janice Austin FM3-78
11.14 Right to Revoke. Intel retains the right to revoke any Key and CCF Cloud Service at any time for any reason, including without limitation, for the following reasons:
a. Intel believes, in good faith, that a Key has been compromised, misappropriated, lost, intercepted, or is otherwise being used without authorization;
b. Intel believes, in good faith, that Licensee has breached any provision of this Agreement; or
c. Upon termination of this Agreement.
Licensee acknowledges and agrees that revocation of a Key may disable the functionality of Licensee’s Applications. If Intel’s revocation is due to Licensee’s breach of this Agreement, Licensee’s negligence or Licensee’s intentional wrongdoing then Intel may require Licensee to pay any actual costs associated with such revocation.
11.15 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the use of the CCF Technology and supersedes all prior understandings regarding such subject matter. This Agreement may be modified only: (a) by a written amendment signed by both parties; or (b) to the extent expressly permitted by this Agreement (for example, by Intel by written or email notice to Licensee). Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. If Licensee is located in the province of Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.
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