IMPORTANT - READ CAREFULLY: This Software License Agreement ("SLA") is a legal agreement between you (either an individual or a single entity) and MUSHKIN INC. ("MUSHKIN") for the MUSHKIN herein and licensed herein, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("LICENSED SOFTWARE").
By installing, copying, or otherwise using the LICENSED SOFTWARE, you agree to be bound by the terms of this SLA. If you do not agree to the terms of this SLA, you may not install, copy or use the LICENSED SOFTWARE. The LICENSED SOFTWARE is licensed, not sold. NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained in this SLA (also referred to as "Agreement"), the parties hereby agree as
1.1. "Authorized Use for MUSHKIN Source Code" means use of the MUSHKIN Source Code solely for the purpose of internally developing, modifying, integrating and testing Licensee's Products to interface with MUSHKIN Devices authorized for such integration, and for no other use or purpose.
1.2. "Authorized Use for MUSHKIN Binary Code" means use of the MUSHKIN Binary Code solely for the purpose of internal evaluation or developing, integrating, testing and use of Licensee's Products to interface with MUSHKIN Devices and for no other application, use or purpose.
1.3. "Authorized Use for MUSHKIN Internal Code" means use of the MUSHKIN Internal Use Code solely for the purpose of internally developing, modifying, integrating and testing Licensee's Products to interface with MUSHKIN Devices authorized for such integration, and for no other use or purpose.
1.4. "Explanatory Materials" means explanatory and informational materials or documentation concerning the MUSHKIN Licensed Code, in printed or electronic format, including without limitation, manuals, descriptions, user and/or installation instructions, diagrams, printouts, listings, flowcharts, and training materials, contained on visual media such as paper or photographic film, or on other physical storage media in machine-readable form. Explanatory Materials do not include any code.
1.5. "MUSHKIN Licensed Code" means collectively all the software programs which are owned or distributed by MUSHKIN and licensed to Licensee via the MUSHKIN Download Center through acceptance of this Agreement. The MUSHKIN Licensed Code is specifically referenced individually in this Agreement as MUSHKIN Source Code, MUSHKIN Binary Code, or MUSHKIN Internal Use Code.
1.6. "Licensee's Products" means the hardware and software (and related Licensee documentation) that will be developed or modified by or for Licensee utilizing the MUSHKIN Licensed Code for the purpose of interfacing or being used with MUSHKIN Devices.
1.7. "Updates" means maintenance releases, bug fixes, errata or other corrections, and minor improvements or modifications to the MUSHKIN Licensed Code which may be provided by MUSHKIN to Licensee from time to time at MUSHKIN's sole discretion. MUSHKIN is under no obligation to provide Updates or provide support and maintenance services to Licensee Subsequent Users.
1.8. "New Version" means significant changes, modifications, enhancements, and/or functional improvements to the MUSHKIN Licensed Code. New Versions are made and generally distributed solely at the discretion of MUSHKIN. Licensee must use the latest New Version of MUSHKIN Licensed Code that is available. MUSHKIN is under no obligation to port any development work from one version to the latest New Version of MUSHKIN Licensed Code.
1.9. "MUSHKIN Devices" means those MUSHKIN products intended for use with the MUSHKIN Licensed Code and purchased from MUSHKIN or its agents.
1.10. "Derivative Works" means: (a) for copyrightable or copyrighted material, any translation (including translation into other computer languages), port, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret.
1.11. "Intellectual Property Rights" means (by whatever name or term known or designated) copyrights, trade secrets, patents, moral rights and any other intellectual and industrial property and proprietary rights (excluding trademarks) including registrations, applications, renewals and extensions of such rights anywhere in the world.
1.12. "MUSHKIN Binary Code" means the software programs provided for distribution at the MUSHKIN Download Center, in binary form, any other machine readable materials, including, but not limited to, libraries, source files, header files, and data files, any Updates and New Versions provided by MUSHKIN.
1.13. "MUSHKIN Source Code" means the software programs provided for distribution at the MUSHKIN Download Center, in source form including, but not limited to, libraries, source files, header files, and data files, and Updates and New Versions provided by MUSHKIN.
1.14. "MUSHKIN Internal Use Code" means the software programs provided for distribution at the MUSHKIN Download Center, in source code or object code format including, but not limited to, libraries, source files, header files, and data files, and Updates and New Versions provided by MUSHKIN that are only for Licensee's internal use.
1.15. "JRE Code" mean Oracle Corporation's JAVA SE Runtime Environment Code.
1.16. "Subsequent User" means any user subsequent to Licensee, including but not limited to, all Licensee customers, resellers, end users, and OEMs.
1.17 "Taxes" shall mean all taxes, levies, imposts, duties, fines or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party's net income or property.
2. Grant of Rights
2.1 MUSHKIN Binary Code. Subject to the terms of this Agreement, MUSHKIN grants to Licensee a non-exclusive, world-wide, revocable (for breach in accordance with Section 7), non-transferable limited license, without the right to sublicense except as expressly provided herein, solely to:
(a) Use the MUSHKIN Binary Code and related Explanatory Materials solely for the Authorized Use for Binary Code and only with MUSHKIN Devices
(b) Make copies of the MUSHKIN Binary Code and related Explanatory Materials to support the Authorized Use for Binary Code and for archival and backup purposes in support of the Authorized Use for Binary Code only with MUSHKIN Devices;
(c) Distribute the MUSHKIN Binary Code as incorporated in Licensee's Products or for use with MUSHKIN Devices to its Subsequent Users;
(d) Distribute the Explanatory Materials related to MUSHKIN Binary Code only for use with MUSHKIN Devices;
(e) Sublicense the rights provided in paragraphs (a) and (b) above in accordance with the terms provided in this Agreement to contract manufacturers ("CMs") and/or original design manufacturers ("ODMs"), in each case meeting the requirements of Section 3.1(d) below for the purpose of manufacturing Licensee's Products; and (f) Sublicense the rights provided in paragraphs (b) and (c) in accordance with the terms provided in this Agreement to Subsequent Users who are not end users for the purpose of distributing and supporting Licensee's Product.
2.2 MUSHKIN Source Code. Subject to the terms of this Agreement, MUSHKIN grants to Licensee a non-exclusive, worldwide, revocable (for breach in accordance with Section 7), non-transferable limited license, without the right to sublicense except as expressly provided herein, solely to:
(a) Use the MUSHKIN Source Code and related Explanatory Materials solely for the Authorized Use for Source Code and only with MUSHKIN Devices;
(b) Make copies of the MUSHKIN Source Code and related Explanatory Material to support the Authorized Use for Source Code only and for archival and backup purposes in support of the Authorized use for Source Code only with MUSHKIN Devices;
(c) Modify and prepare Derivative Works of the MUSHKIN Source Code for the Authorized Use for MUSHKIN Source Code and only for use with MUSHKIN Devices;
(d) Distribute the binary form only of any authorized Derivative Work of the MUSHKIN Source Code ("Licensee Binary Derivative") and necessary portions of the related Explanatory Materials only for use with MUSHKIN Devices; and
(e) Sublicense the rights granted in paragraph (d) above in accordance with the terms provided in this Agreement to Subsequent Users who are not end users for the purpose of distributing and supporting Licensee's Product.
2.3 MUSHKIN Internal Use Code. Subject to the terms of this Agreement, MUSHKIN grants to Licensee a non-exclusive, worldwide, revocable (for breach in accordance with Section 7), non-transferable limited license, without the right to sublicense or distribute, solely to:
(a) Use the MUSHKIN Internal Use Code and related Explanatory Materials solely for the Authorized Use for Internal Code and only with MUSHKIN Devices; and
(b) Make copies of the MUSHKIN Internal Use Code and related Explanatory Materials to support the Authorized Use for Internal Code only and for archival and backup purposes in support of the Authorized use for Internal Code only with MUSHKIN Devices.
2.4 Without limiting Section 4, Licensee may exercise the foregoing rights directly and/or indirectly through its employees and contractors, who are bound by terms at least as restrictive as this Agreement.
3. License Restrictions
3.1. MUSHKIN Binary Code. The Licenses granted in Section 2.1 for MUSHKIN Binary Code and related Explanatory Materials are subject to the following restrictions:
(a) Licensee shall not use the MUSHKIN Binary Code and related Explanatory Materials for any purpose other than as expressly provided in Article 2;
(b) Licensee shall reproduce all copyright notices and other proprietary markings or legends contained within or on the MUSHKIN Binary Code and related Explanatory Materials on any copies it makes; and
(c) Licensee shall not distribute or disclose the MUSHKIN Binary Code and related Explanatory Materials except pursuant to an agreement with terms at least as protective of MUSHKIN's Binary Code as the terms of this Agreement. Licensee shall not, and shall not allow its Subsequent Users to, disassemble, de-compile, or reverse engineer the MUSHKIN Binary Code.
(d) Licensee may grant the sublicense set forth in Section 2.1(e) to its CMs and ODMs, provided that each such CM and ODM agrees to abide by the terms and conditions of this Agreement and Licensee shall remain responsible for any failure by its CMs and ODM to comply with the terms and conditions of this Agreement.
3.2. MUSHKIN Source Code. The Licenses granted in Section 2.2 for MUSHKIN Source Code and related Explanatory Materials are subject to the following restrictions:
(a) Licensee shall not use the MUSHKIN Source Code and related Explanatory Materials for any purpose other than as expressly provided in Article 2;
(b) Licensee shall reproduce all copyright notices and other proprietary markings or legends contained within or on the MUSHKIN Source Code and related Explanatory Materials on any copies it makes;
(c) Licensee shall not distribute or disclose any MUSHKIN Source Code and related Explanatory Materials to any Subsequent Users or third parties, without the express written consent of MUSHKIN;
(d) Licensee shall not knowingly infringe upon the intellectual property rights of any third party when making Derivative Works to the MUSHKIN Source Code;
(e) Licensee shall not disassemble, reverse-engineer, or decompile the MUSHKIN Source Code, except for making authorized Derivative Works; and
(f) Licensee shall not distribute or disclose the Licensee Binary Derivative except pursuant to an agreement with terms at least as protective as those in this Agreement protecting MUSHKIN's Binary Code. Licensee shall not, and shall not allow its Subsequent Users to, disassemble, de-compile, or reverse engineer the Licensee Binary Derivative.
3.3. MUSHKIN Internal Use Code. The Licenses granted in Section 2.3 for MUSHKIN Internal Use Code and related Explanatory Materials are subject to the following restrictions:
(a) Licensee shall not use the MUSHKIN Internal Use Code and related Explanatory Materials for any purpose other than as expressly provided in Article 2;
(b) Licensee shall reproduce all copyright notices and other proprietary markings or legends contained within or on the MUSHKIN Internal Use Code and related Explanatory Materials on any copies it makes;
(c) Licensee shall not distribute or disclose any MUSHKIN Internal Use Code and related Explanatory Materials to any Subsequent Users or third parties, without the express written consent of MUSHKIN; and
(d) Licensee shall not disassemble, reverse-engineer, or decompile the MUSHKIN Internal Use Code.
3.4. Derivative Works of MUSHKIN Source Code Made by Licensee. Subject to MUSHKIN's rights in the underlying MUSHKIN Source Code, Licensee shall own all right, title and interest in and to the Derivative Works (both binary and source format) it makes from MUSHKIN Source Code, provided that such Derivative Works are not made in breach of this Agreement. Licensee shall not be required to disclose its Derivative Works of the MUSHKIN Source Code to MUSHKIN. MUSHKIN shall have no obligations whatsoever to support, maintain, contribute to, or provide Updates, New Versions or any modifications to Licensee Derivative Works of the MUSHKIN Source Code and shall have no liability whatsoever for such Derivative Works. In the event Licensee requests MUSHKIN's input regarding Licensee Derivative Works of MUSHKIN Source Code and plans to disclose such Derivative Works to MUSHKIN, a separate written agreement shall first be executed by the parties.
3.5. MUSHKIN Derivative Works. Nothing contained herein shall prevent MUSHKIN from creating any Derivative Works of its MUSHKIN Source Code at any time. Licensee further agrees that MUSHKIN may independently create a Derivative Work similar to or in competition with the Licensee Derivative Work of the MUSHKIN Source Code and may use that Derivative Work for any purpose. Licensee grants MUSHKIN a Covenant Not to Sue for any independently developed Derivative Works created by MUSHKIN for its own MUSHKIN Source Code that Licensee may believe or claim infringes on any of Licensee's Intellectual Property Rights relating to the Licensee Derivative Works of the MUSHKIN Source Code.
3.6. U.S. Government Subsequent Users. All MUSHKIN Licensed Code and Explanatory Materials qualify as "commercial items," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 CFR 52.227-19, 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to U.S. Government end users such MUSHKIN Binary Code with only those rights set forth herein that apply to non-governmental end users. Use of such MUSHKIN Binary Code constitutes agreement by the government entity that the computer software and computer software documentation is commercial and constitutes acceptance of the rights and restrictions herein.
3.7. No Implied Licenses. Except for the express and limited licenses granted herein for specific purposes, no rights or licenses are granted by MUSHKIN under this Agreement, by implication, inducement, estoppel or otherwise with respect to any proprietary information or to any patents, copyrights, trade secrets, trademarks, maskworks or other Intellectual Property Rights owned or controlled by MUSHKIN. Any further licenses must be express, in writing and signed by an authorized representative of MUSHKIN.
3.8. Injunctive Relief. In the event of a breach by Licensee of this Section 2 or 3, MUSHKIN shall be entitled to applicable injunctive relief and to all remedies available in equity and law to prevent Licensee from disassembling, de-compiling, reverse engineering, disclosing or using the MUSHKIN Licensed Code in whole or in part.
3.9. MUSHKIN Licensed Code Containing JRE. Certain MUSHKIN Licensed Code may contain JRE. Use of the JRE is restricted by JRE licensing terms to General Purpose Desktop Computers and Servers, as defined below. Licensee may seek its own license for the JRE directly with the owner, if it deems necessary. "General Purposes Desktop Computers and Servers" under JRE licensing terms is defined as "computers, including desktop, laptop and tablet computers, or servers, used for general computing functions under end user control (such as but not specifically limited to email, general purpose Internet browsing and office suite productivity tools)". The full terms and conditions for use of the JRE are available at: http://www.oracle.com/technetwork/java/javase/terms/license/index.html.
3.10. Notwithstanding anything to the contrary in this Agreement, to the extent there is a conflict between this Agreement provisions and any applicable license to open source technology, the provisions of the open source license shall take precedence and be followed, but only to the minimum extent reasonably necessary to comply with the applicable open source license.
4.1 Licensee agrees to limit access to the MUSHKIN Licensed Code and Explanatory Materials to employees and contractors of Licensee (which may include, without limitation, contractors retained by Licensee to maintain or modify the MUSHKIN Licensed Code and Explanatory Materials on behalf of Licensee) having a need to access or know the MUSHKIN Licensed Code and Explanatory Materials and who have executed nondisclosure agreements with Licensee obligating them to maintain the confidentiality of the MUSHKIN Licensed Code and Explanatory Materials.
4.2 Licensee shall hold in confidence the MUSHKIN Licensed Code and Explanatory Materials as MUSHKIN's confidential information ("Confidential Information") and shall use the MUSHKIN Code and Explanatory Materials only as expressly provided in Section 2, and protect the confidentiality of such Confidential Information with the same degree of care as Licensee uses to protect its own confidential or proprietary information of great commercial value, but in no event less than reasonable care and for no less than three (3) years from the date of disclosure.
4.3 Licensee agrees to notify MUSHKIN immediately after Licensee becomes aware of any suspected misuse or unauthorized disclosure of any Confidential Information. The obligations of confidentiality imposed on Licensee under this Section 4 shall not apply or shall cease to apply to any of such Confidential Information that Licensee clearly establishes: (i) was already rightfully in the possession of Licensee at the time of disclosure as evidenced by records of Licensee; (ii) is or becomes publicly available through no act or omission of Licensee; (iii) is rightfully received by Licensee from a third party without an obligation of confidentiality; (iv) is independently developed by Licensee's employees or contractors without use of or access to the information; or (v) is approved for unrestricted disclosure in writing by an authorized representative of MUSHKIN. MUSHKIN makes no warranty as to the accuracy of any Confidential Information, which is furnished "AS IS" with all faults.
5. Ownership of Code by MUSHKIN, Fees, and Taxes
5.1 MUSHKIN (or its licensors) reserve all right, title, ownership and interest in and to the MUSHKIN Licensed Code and Explanatory Materials existing prior to and after the Effective Date of this Agreement, or created or generated by MUSHKIN (or its licensors) at any time, subject to any licenses granted. MUSHKIN (or its licensors) reserves all right, title, ownership and interest in and to any Derivative Works it creates at any time to the MUSHKIN Licensed Code and Explanatory Materials, subject to any licenses granted.
5.2 Fees and Taxes. No fees are due in connection with this Agreement unless separately specified by MUSHKIN. If any such fees are separately specified in writing, the following applies:
5.2.1 Payment is due by Licensee upon download, at time of purchase, or no later than within thirty (30) days of date of MUSHKIN invoice therefore, as designated by MUSHKIN All payments shall be made in U.S. currency unless otherwise agreed. If at any time, Licensee is delinquent in the payment of any invoice, or is otherwise in breach of this Agreement, MUSHKIN may, at its discretion, and without prejudice to its other rights, withhold delivery (including partial delivery) of any order or may, at its option, require Licensee to prepay for further deliveries. Any sum not paid by Licensee, when due, shall bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less.
5.2.2 All payments or reimbursements due under this Agreement and any instrument or agreement required hereunder shall be made free and clear and without deduction for any and all present and future Taxes. Payments due to MUSHKIN under this Agreement and any instrument or agreement required hereunder shall be increased so that amounts received by MUSHKIN, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement and any instrument or agreement required hereunder if no Taxes were due on such payments.
5.2.3 The Licensee shall indemnify MUSHKIN for the full amount of Taxes attributable to the provision of products or services under this Agreement, and any liabilities (including penalties, interest and expenses) arising from such Taxes, within thirty (30) days from any written demand by MUSHKIN. The Licensee shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority by delivering to MUSHKIN receipts or notarized copies thereof within thirty (30) days after the due date for such tax payments.
5.2.4 Without prejudice to the survival of any other Agreement of Licensee hereunder, the obligations of Licensee contained in this section shall survive the payment in full of all payments hereunder.
(a) MUSHKIN may provide the following support services for the MUSHKIN Licensed Code to the extent MUSHKIN deems reasonable: Updates if and when released and errata in MUSHKIN's sole discretion. MUSHKIN shall not be responsible for any other support or maintenance of MUSHKIN Licensed Code to Licensee or its Subsequent Users, unless otherwise agreed to in writing. MUSHKIN is under no obligation to provide support services and may discontinue support services at any time. MUSHKIN will not provide support for modified MUSHKIN Licensed Code or Licensee's Derivative Works of the MUSHKIN Source Code.
(b) Any Updates to the MUSHKIN Licensed Code provided by MUSHKIN (which shall only be provided by MUSHKIN in its sole discretion) shall be governed by the terms of this Agreement.
(c) If Licensee finds what Licensee considers an error in the MUSHKIN Licensed Code, Licensee will notify MUSHKIN so that MUSHKIN can, in its sole discretion, make corrections to the MUSHKIN Licensed Code or to future revisions of the MUSHKIN Licensed Code.
7. Term and Termination
7.1 Term. The term of this Agreement is five (5) years from the Effective Date, subject to renewal upon mutual agreement of the parties.
7.2 Termination for Breach. If Licensee breaches any material provision of this Agreement, MUSHKIN shall have the right to terminate this Agreement, including all licenses granted hereunder, in addition to any and all other remedies available at law or equity, unless Licensee cures such breach within sixty (60) days ("Cure Period") after receiving written notice of the breach by MUSHKIN. Licensee shall make best efforts to cure the material breach in the least amount of time possible within the Cure Period.
7.3 Insolvency. If either party: (a) becomes substantially insolvent; (b) makes an assignment for the benefit of creditors; (c) files or has filed against it a petition in bankruptcy or seeking reorganization; (d) has a receiver appointed; or (e) institutes any proceedings for liquidation or winding up or have such proceedings instituted against it; then the other party may, in addition to other rights and remedies it may have, terminate this Agreement immediately by written notice.
7.4 Consequences. Upon termination or expiration of this Agreement for any reason whatsoever, the licenses, rights, and covenants granted hereunder and any obligations imposed hereunder shall cease except as otherwise expressly set forth herein as surviving termination or expiration.
7.5 Return of Confidential Information. Upon expiration or termination of this Agreement for any reason or upon written request by MUSHKIN, Licensee agrees to promptly return to MUSHKIN or, at MUSHKIN's request, destroy and certify by an officer of Licensee in writing the destruction of, all MUSHKIN Confidential Information furnished to Licensee, including all MUSHKIN Licensed Code and Explanatory Materials.
7.6 Survival of Licenses. Any MUSHKIN Licensed Code and Explanatory Materials distributed prior to the effective date of any termination, expiration, breach, or cancellation of this Agreement, shall remain licensed (including any MUSHKIN Licensed Code in inventory, manufactured, or work in progress with Licensee products) under the terms of this Agreement. Notwithstanding the foregoing, Licensee may retain an archival copy of portions of the MUSHKIN Confidential Information, including MUSHKIN Licensed Code and Explanatory Materials, necessary for Licensee to provide ongoing technical support to Subsequent Users using the MUSHKIN Licensed Code ("Archival Materials") after termination, expiration or cancellation of this Agreement. Such Archival Materials may not be used for any other purpose without the written consent from MUSHKIN. Licensee shall keep such Archival Materials confidential for an additional five (5) years from the date of termination, expiration , or cancellation of this Agreement, regardless of when the MUSHKIN Confidential Information was disclosed.
7.7 Survival. In the event of expiration or termination of this Agreement for any reason, the following sections of this Agreement shall survive: 1, 3, 5, 7, 8, 9, 8 and 10. Termination will not prejudice either party to require performance of any obligation due at the time of termination. All end user licenses in effect and in compliance with the Agreement prior to effective termination or expiration shall survive and continue in full force and effect in accordance with their terms and Licensee may continue to perform its obligations thereunder, including support obligations.
8. Disclaimer of All Warranties
8.1 THE PARTIES AGREE THAT MUSHKIN FURNISHES THE MUSHKIN LICENSED CODE AND EXPLANATORY MATERIALS TO LICENSEE "AS IS," UNSUPPORTED, WITHOUT WARRANTY OF ANY KIND. MUSHKIN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, INCLUDING ANY THAT MAY ARISE FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. MUSHKIN SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN THE MUSHKIN LICENSED CODE OR EXPLANATORY MATERIALS. MUSHKIN MAKES NO WARRANTY OR REPRESENTATION THAT THE MUSHKIN LICENSED CODE OR EXPLANATORY MATERIALS WILL MEET LICENSEE'S REQUIREMENTS OR WILL WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE APPLICATION.
8.2 MUSHKIN DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S USE OF THE MUSHKIN LICENSED CODE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER HIGH RISK DEVICE OR APPLICATION. LICENSEE REPRESENTS AND WARRANTS THAT IT WILL NOT USE THE LICENSED MUSHKIN CODE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER HIGH RISK DEVICE OR APPLICATION. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD MUSHKIN HARMLESS AGAINST ANY LOSS, LIABILITY, OR DAMAGE OF ANY KIND THAT MUSHKIN INCURS IN CONNECTION WITH BREACH OF THE WARRANTY IN THIS SECTION 8.2.
8.3 MUSHKIN DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S CREATION AND USE OF DERIVATIVE WORKS OF THE MUSHKIN SOURCE CODE. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD MUSHKIN HARMLESS AGAINST ANY LOSS, LIABILITY, OR DAMAGE OF ANY KIND THAT MUSHKIN INCURS IN CONNECTION WITH LICENSEE'S DERIVATIVE WORKS OF MUSHKIN SOURCE CODE.
9. Limitation of Liability
IN NO EVENT SHALL MUSHKIN, ITS EMPLOYEES, AFFILIATES ORSUPPLIERS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES OR DATA OR COSTS OF PROCURE OF SUBTITUTE GOODS OR SERVICES, INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC OR PUNITIVE DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILTY TO USE THE MUSHKIN LICENSED CODE OR EXPLANATORY MATERIALS, EVEN IF MUSHKIN OR ITS EMPLOYEES, SUPPLIERS OR AFFILIATES ARE ADVISED OF THE POSSIBILTIY OF SUCH DAMAGES. IN THE EVENT THAT THE APPLICABLE JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, BUT DOES ALLOW LIABILTY TO BE LIMITED, THE LIABILITY OF MUSHKIN, ITS EMPLOYEES, AFFILIATES, OR SUPPLIERS IN SUCH CASES, SHALL BE LIMITED TO $100 US DOLLARS.
10.1 Assignment. Licensee shall not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of MUSHKIN. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of this Section 10.1 shall be null and void.
10.2 Governing Law. This Agreement shall be construed and interpreted in accordance with the law of the State of California without reference to its conflicts of law principles.
10.3 Exclusive Jurisdiction. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the California state courts of Santa Clara County, California in United States District Court for the Northern District of California, and the parties consent to the personal and exclusive jurisdiction of these courts.
10.4 Export Control. Licensee shall follow all export control laws and regulations relating to the MUSHKIN Licensed Code and Explanatory Materials. Licensee hereby acknowledges responsibility for compliance with all applicable US and local laws and regulations related to import and export and acknowledges and agrees that the MUSHKIN Licensed Code is subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Licensee agrees that the MUSHKIN Licensed Code is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to prohibited or embargoed countries, nor be used for any prohibited end-use, such as nuclear activities, chemical/biological weapons, or missile projects, unless expressly authorized by the U.S. Government. Prohibited countries are set forth in the Supplement 1 to Part 740 of the U.S. Export Administration Regulations. Countries currently subject to U.S. embargo include: Cuba, Iran, N. Korea, Sudan and Syria. This list is subject to change without further notice from MUSHKIN Corporation and Licensee understands that compliance with the list as it exists in fact, is required. Licensee assumes sole responsibility for obtaining any/all licenses required for export or re-export. All ECCN and CCATS numbers and License Exception information are subject to change without notice. Modification in any way nullifies the classification. It is therefore your obligation as an exporter to verify such information and comply with the then currently applicable regulations. Any data provided by MUSHKIN is for informational purposes only. MUSHKIN Corporation makes no representation or warranty as to the accuracy or reliability of any classifications or numbers. Any use of such classifications or numbers by you is without recourse to MUSHKIN Corporation and is at your own risk. MUSHKIN Corporation is in no way responsible for any damages, whether direct, indirect, consequential, incidental or otherwise, suffered by you as a result of using or relying upon such classifications or numbers for any purpose whatsoever. Licensee agrees to consult the EAR, the Bureau of Industry and Security's Export Counseling Division, and other appropriate sources before distributing, importing, or using MUSHKIN products. You may request software classification information from MUSHKIN or view it at MUSHKIN.com. If requested, Customer agrees to sign written assurances and other export-related documents as may be required by MUSHKIN.
10.5 Waiver. No failure or delay on the part of either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof or of the exercise of any other right or privilege hereunder, nor shall any single or partial exercise of any such right or privilege preclude other or further exercise thereof or of any other right or privilege.
10.6 Notice. Any notice or claim provided for herein to MUSHKIN shall be in writing and addressed as set forth below, and shall be given (i) by personal delivery, effective upon delivery, (ii) by first class mail, postage prepaid, addressed as set forth below, effective one (1) business day after proper deposit in the mail, or (iii) by facsimile directed to the facsimile number set forth below, but only if accompanied by mailing of a copy in accordance with (ii) above, effective as of the date of facsimile transmission.
Mushkin Enhanced MFG
828 New Meister Lane, Suite 300
Pflugerville, TX 78660
10.7 Severability. If any term, condition, or provision of this Agreement, or portion of this Agreement, is found to be invalid, unlawful or unenforceable to any extent, the parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. Such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
10.8 Other Rights. Nothing contained in this Agreement shall be construed as conferring by implication, estoppel, or otherwise upon either party or any third party any license or other right except, solely as to the parties hereto, the rights expressly granted hereunder.
10.9 Integration; Modification. This Agreement embodies the final, complete and exclusive statement of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous representations, descriptions, courses of dealing, or agreements in regard to such subject matter. No amendment or modification of this Agreement shall be valid or binding upon the parties unless stated in writing and signed by an authorized representative of each party.
10.10 Publicity. All publicity concerning this transaction referring to the other party shall require the other party's prior written approval which shall not be unreasonably withheld.
10.11 Relationship of the Parties. The relationship of the parties hereto is that of independent contractors. Neither party, nor its agents or employees, shall be deemed to be the agent, employee, joint venture partner, partner or fiduciary of the other party. Neither party shall have the right to bind the other party, transact any business on behalf of or in the name of the other party, or incur any liability for or on behalf of the other party.
By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.
In no event shall Mushkin Inc. or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on Mushkin Inc.'s Internet site, even if Mushkin Inc. or a Mushkin Inc. authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
The materials appearing on Mushkin Inc.'s web site could include technical, typographical, or photographic errors. Mushkin Inc. does not warrant that any of the materials on its web site are accurate, complete, or current. Mushkin Inc. may make changes to the materials contained on its web site at any time without notice. Mushkin Inc. does not, however, make any commitment to update the materials.
Mushkin Inc. has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Mushkin Inc. of the site. Use of any such linked web site is at the user's own risk.
Any claim relating to Mushkin Inc.'s web site shall be governed by the laws of the State of Texas without regard to its conflict of law provisions.
General Terms and Conditions applicable to Use of a Web Site.
We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.
We do apologize, but we are currently re-designing or Support portal to better serve you. In the mean time please feel free to call or email our support team for further information.
Telephone: 1 (800) 569-1868 and press 1