iBeacon License
Purpose
Licensee would like to: (i)
use certain Apple technology (the "Licensed Technology," as defined in Section
1 below) in Licensee products (the "Licensed Products," as defined in Section 1
below), and sell such products to Licensee's customers, under Licensee's brand,
directly or indirectly through resellers and distributors; and/or (ii) use the
Licensed Technology in Licensed Products for sale or distribution under the label
or brand of a third party; and/or (iii) use Apple's proprietary iBeacon Wordmark and/or graphic
designs (the "Badge") in connection with Licensee's products and/or to promote
the operation of iBeacon Licensed Technology as
incorporated in a Licensed Product. Apple is willing to grant Licensee a
limited license to use the Licensed Technology in certain Licensed Products and/or
to use the Badge in connection with such Licensed Products, or as otherwise
described herein, on the terms and conditions set forth in this Use License.
This is a license agreement only and not an agreement for the sale of goods.
Agreement
1. Definitions
Capitalized terms used in this Use License are
defined as follows:
"Affiliate"means a corporation or other entity
controlled by, controlling, or under common control with a party, and
"controlled by," "control" or "controlling" means: (i) the
ownership, directly or indirectly, of more than 50% of the voting stock or
analogous interest in such corporation or other entity; or (ii) the
existence of any other relationship between such party and such other
corporation or entity which results in effective managerial control by one over
the other, regardless whether such control is continuously exercised.
"Apple" means Apple Inc., a
California corporation with its principal place of business at 1 Infinite
Loop, Cupertino, California 95014.
"Badge"means the "iBeacon" graphic design made available by Apple upon
acceptance of this Use License.
"Badge Guidelines"means the most
recent version of the Apple iBeacon guidelines that
Apple makes available to Licensee upon acceptance of this Use License, which
guidelines are incorporated in this Use License by this reference.
"Change of Control" means (a) the
reorganization, merger or consolidation, or sale or other disposition of
substantially all of the assets of Licensee, or (b) the acquisition by any
individual, entity or group of the direct or indirect beneficial ownership of
50% or more of either Licensee's then-outstanding shares of common stock or the
combined voting power of the then-outstanding voting securities of Licensee
entitled to vote generally in an election of directors.
"Compatible iOS Product"means all Apple
products that are designed to interoperate with the Licensed Technology and that
are capable of downloading and executing iOS Applications.
"Documentation"means the Licensed
Specifications, any mechanical, electrical, or signal characteristics, or any
other specifications or documentation that Apple may make available or provide
to Licensee relating to or for use in connection with Licensed Technology.
"Effective Date"means the date this
Use License was signed by Licensee.
"iOS Application"means a software
program designed to run on a Compatible iOS Product that was developed using
Apple's iOS SDK pursuant to and in accordance with an iOS Developer Program
License Agreement.
"iOS Developer Program License Agreement"
means an executed and in-effect agreement with Apple granting those licenses
necessary to use Apple's iOS SDK to develop and test iOS Applications for use
with Compatible iOS Products.
"Licensed Product" means a Licensee
product that controls or interfaces, communicates, or otherwise interoperates
with Compatible iOS Products in accordance with the Documentation and this Use
License.
"Licensed Technology" means the iBeacon Licensed Specifications, as amended by Apple from
time to time, and any other Documentation, devices, digital keys, key sets,
source code, object code, or other technology provided by Apple, in its sole
discretion, under this Use License for use by Licensee in connection with a Licensed
Product.
"Licensed Specifications" means the most
current versions of each of the specification documents made available by Apple
upon acceptance of this Use License, and as amended by Apple from time to time.
"Licensee" means the legal entity licensed
pursuant to this Use License upon its acceptance.
"Modification" means any addition
to, deletion from, or change made by Apple to the substance or structure of
Licensed Technology. Any Modifications licensed by Apple under this Use License
will be deemed to be "Licensed Technology."
"Term" means the period described in the first
paragraph of Section 10.
"Use License" means this iBeacon License, including
all the documentation made available to Licensee by Apple, each of which is
incorporated by reference.
2. Licensed Products
Licensee hereby agrees and acknowledges that each product,
and any and all of its versions and upgrades, which implements Licensed
Technology, meets, at Licensee's expense, the following requirements: (i) is compatible with all Compatible iOS Products, (ii) meets
the requirements of the Licensed Specifications and other Documentation, and (iii)
complies with all other requirements and restrictions set forth in this Use
License.
Additional Restrictions or Requirements
Applicable laws or regulations may impose
additional restrictions or requirements with respect to Licensed Products that
are not addressed in Apple's Licensed Specifications or this Use License.
Licensee is solely responsible for determining such restrictions or
requirements, and Licensee hereby represents and warrants that it is in full
compliance with all applicable laws, regulations, and policies related to the design,
manufacturing, marketing, privacy aspects, sale or offer for sale, use, distribution,
and operation of Licensed Products in the United States, and in particular the
requirements of the U.S. Federal Communications Commission ("FCC"), including
but not limited to, compliance with all SAR requirements, as well as the laws,
regulations, and policies of any other applicable legislative or regulatory
bodies in any location where Licensee designs, manufactures, markets, offers to
sell, sells, uses, distributes, operates, or otherwise makes Licensed Products
available.
Licensee will not seek any regulatory permission
or make any representations or determinations that may result in any Compatible
iOS Products being deemed regulated or subject to additional legal or
governmental requirements, or that may impose any obligations or limitations on
Apple.
Licensee will not use or alter the Licensed Technology
to transmit or otherwise collect user data, device data, location data, or any
personally identifiable information without first obtaining the user's consent to
do so and providing clear and complete information to users regarding any such transmission,
collection and use of data.
Licensee represents and warrants that it will market
Licensed Products that implement Licensed Technology only for their cleared or
approved intended use/indication for use, and only in strict compliance with
applicable regulatory requirements. Licensee agrees to promptly notify Apple of
any complaints or threats of complaints regarding such Licensed Products in
relation to any such regulatory requirements, in which case, at Apple's
direction, Licensee will immediately suspend all sales and distribution of such
Licensed Products.
Additional License Required For Development/Distribution of Software Application
Licensee acknowledges that this Use License does not give Licensee the right to develop,
market, or distribute an iOS Application, and that a separate license is
required to secure such rights. Licensee must execute an iOS Developer Program
License Agreement as a condition for exercising the rights granted under this
Use License. Execution of this Use License does not constitute approval of an
associated iOS Application for distribution on Apple's App Store. For further
information regarding development, marketing, and distribution of iOS
Applications, please refer to https://developer.apple.com/.
3. Licensed Technology
Permitted Uses
Subject to the terms and conditions of this Use
License, Apple hereby grants Licensee a limited, non-exclusive, personal, non-sublicensable, and non-transferable license under Apple's
intellectual property rights to:
a)Make and distribute a reasonable
number of copies of the Documentation to employees and contractors with a
demonstrable need to know, for their internal use only, and only for the
purpose of developing Licensed Products;
b)Incorporate Licensed Technology in Licensed
Products, including by implementing the Licensed Specifications in source code
or object code, to permit such Licensed Products to interoperate with
Compatible iOS Products in accordance with the Documentation, and to manufacture,
or have manufactured, a reasonable number of Licensed Products for test
purposes;
c)Manufacture, or have manufactured,
Licensed Products incorporating Licensed Technology;
Import, offer to sell, sell, or
otherwise distribute Licensed Products incorporating Licensed Technology to Licensee's
customers, directly or indirectly through Licensee's Affiliates, resellers,
and/or distributors; and
e)Distribute source code and object code in accordance with the limitations set forth in this Section 3.
Limitation on the Distribution of Source Code and Object Code
The rights granted under Permitted Uses, above,
with respect to source code and object code, shall be limited as follows:
Licensee may only distribute source
code to those of its employees, contractors, or another iBeacon
Licensee, with a demonstrable need-to-know, for their internal use, without the
right of redistribution, and only for the purpose of developing Licensed
Products that implement Licensed Technology; and
Licensee may only distribute object
code, as a software file, to those of its employees, contractors, or another iBeacon Licensee, with a demonstrable need-to-know, for
their internal use, without the right of redistribution, and only for the
purpose of developing Licensed Products, and to Licensee customers for the sole
and limited purpose of updating the object code embedded in a Licensed Product.
Notwithstanding the foregoing, Licensee may distribute object code, as embedded in a Licensed Product, without restriction to Licensee's customers.
Copies
Licensee must retain and reproduce in all copies of the Documentation the Apple copyright and other proprietary notices
and disclaimers of Apple as they appear in the Documentation.
Public Software
Licensee will not, without Apple's express prior written consent:
(i) incorporate, combine, or distribute any Licensed Technology, or any derivative thereof, with any Public Software,
or
(ii) use any Public Software in the development of Licensed Products,
in such a way that would cause the Licensed Technology, or any derivative thereof, to
be subject to all or part of the license obligations or other intellectual
property related terms with respect to such Public Software. As used in this
subsection, "Public Software" means any software that, as a condition
of use, copying, modification or redistribution, (a) requires attribution, (b)
requires such software and derivative works thereof to be disclosed or
distributed in source code form, or (c) requires such software to be licensed for the purpose of
making derivative works, or to be redistributed free of charge, commonly
referred to as free or open source software, including but not limited to software
licensed under the GNU General Public License, Lesser/Library GPL, Affero GPL, Mozilla Public License, Common Public License,
Common Development and Distribution License, Apache, MIT, or BSD license.
Ownership
Apple retains all rights, title, and interest
in and to the Licensed Technology and any Modifications, including any
Modifications that Apple may choose to make available to Licensee under this
Use License, as well as all intellectual property rights in and to such
Modifications. Licensee will cooperate with Apple to perfect and maintain
Apple's ownership of the Licensed Technology and any Modifications, and
Licensee agrees to promptly provide notice of any infringement,
misappropriation, or any other claims relating to the Licensed Technology or
Modifications.
No Other Permitted Uses
Licensee may use the Licensed Specifications, any
other materials provided by Apple, and all other Licensed Technology,
regardless of the source or manner through which Licensee obtains such
materials, only to permit Licensed
Products to interoperate with Compatible iOS Products in accordance with rights
granted under this Use License, and not for any other purpose or in connection
with any other products or services. Licensee may not add to, delete from,
extend, enhance, improve, modify or create any derivative works of any Licensed
Technology, or modify any of the design, mechanical, electrical, or signal
characteristics of any Licensed Technology, or use any Licensed Technology for
any purpose not expressly permitted by this Use License. Licensee may not
decompile, disassemble, or otherwise reverse engineer any software or hardware
supplied or specified by Apple without Apple's express prior written consent
(except to the extent permitted by applicable law which cannot be waived by
this subsection). Nothing in this Use License shall be construed as an
agreement to bring or prosecute actions against any third party that is
infringing, misappropriating or violating any Licensed Technology. All licenses
not expressly granted in this Use License are reserved and no other licenses,
immunity or rights, express or implied are granted, by implication, estoppel,
or otherwise.
Reservation of Rights
Licensee agrees that the combination of a
Licensed Product with any other item shall not, by itself, affect the licenses
granted hereunder with respect to such Licensed Product, but in no event is any
license, covenant or other form of immunity granted by Apple under this Use
License for any such combination or its use.
4. iBeacon Badge
Licensee's Use of the iBeacon Badge
Unless Apple specifies
otherwise, Licensee must use on the product packaging of each Licensed Product the
Badge shown in the graphic design document made available by Apple upon
acceptance of this Use License. In addition, Licensee may use the Badge in the
user guide for each Licensed Product, and in any advertisements, web pages, and
other collateral materials promoting the Licensed Products. Licensee may also use
the Badge to promote the iBeacon operation of a
Licensed Product. Apple hereby grants Licensee a limited, personal,
non-exclusive, non-sublicensable, and
non-transferable license to the Badge to do so, subject to the terms and
conditions of this Use License. Licensee must use the Badge in strict
accordance with Apple's Badge Guidelines.
Licensee understands and agrees that this Use License
does not permit use of the Badge on any Licensed Product itself or on any labels
affixed to a Licensed Product. Licensee agrees that it will not use the Badge
in any way not expressly permitted by this Use License without Apple's prior
written consent.
Samples
Upon Apple's request, Licensee will provide
samples of any materials on which the Badge appears so that Apple may verify
Licensee's compliance with this Use License. All samples must be shown in
context with surrounding text and other graphic elements. In the event
requested, Licensee will provide samples at no cost to Apple, and Apple will
not be obligated to return the samples to Licensee.
Ownership
The Badge and the iBeacon
word mark ("Wordmark") are proprietary trademarks
owned solely and exclusively by Apple, and Licensee acknowledges the value of
the goodwill associated with the Badge and Wordmark, and
agrees that any goodwill from Licensee's use of the Badge or Wordmark exclusively inures to the benefit of and belongs
to Apple. Licensee has no rights of any kind in or to the Badge or Wordmark except to the extent granted by this Use License.
Licensee agrees that it will not do anything inconsistent with Apple's
ownership of the Badge and Wordmark, such as filing
any trademark application for identical or similar logos or trademarks anywhere
in the world, now or in the future. Licensee may not use the Badge or Wordmark in any manner that suggests Apple's endorsement or
recommendation of the Licensed Product or otherwise creates a false association
with Apple, nor may Licensee use the Badge or Wordmark
on or in connection with anything that is unlawful or encourages unlawful
conduct or in any manner that may, in Apple's sole discretion, be deemed in
poor taste. Apple reserves all rights to control, commence, prosecute, or
defend any action or claim concerning the Badge and Wordmark.
Licensee will cooperate with Apple to maintain Apple's ownership of the Badge
and Wordmark, and Licensee agrees to promptly provide
notice of any claims relating to the Badge, Wordmark
or other Apple trademarks.
No Other Licenses
This Use License does not grant any licenses,
immunity, or rights, expressly or by implication, estoppel, or otherwise, to
use any other trademarks or trade names belonging to Apple, including the iPod,
iPhone, and iPad word marks and the iPod, iPhone and iPad trade dress, in whole
or combination, except as set forth in the published guidelines for using Apple
trademarks at http://www.apple.com/legal/intellectual-property/guidelinesfor3rdparties.html, and Licensee agrees that it will comply with those
guidelines as modified by Apple from time to time.
5. Confidentiality
Obligations Regarding Confidential Information
Licensee agrees to protect Apple's Confidential
Information using at least the same degree of care that it uses to protect its
own confidential information of similar importance, but no less than a
reasonable degree of care. Licensee agrees to use Apple's Confidential
Information solely for the purpose of exercising its rights and performing its
obligations under this Use License and agrees not to use the Confidential
Information for any other purpose, or for its own or any third party's benefit,
without the express prior written consent of Apple's authorized representative.
Licensee further agrees not to disclose or disseminate Apple's Confidential
Information to anyone other than those of its employees and contractors, who
have a need to know and who are bound by a written agreement that prohibits
unauthorized use or disclosure of the Confidential Information. Licensee may
disclose Apple's Confidential Information to the extent required by law,
provided that it takes reasonable steps to notify Apple of such requirement
before disclosing the Confidential Information, obtains protective treatment of
the Confidential Information, and discloses the minimal amount of Confidential
Information required to satisfy such judicial, administrative or other order.
Information Deemed Confidential
The terms and conditions of this Use License, the
Licensed Technology, including any non-public information that Licensee learns
about Apple's products or its business in connection with this Use License or
in connection with Licensee's use of any Licensed Technology, will be deemed
"Apple Confidential Information" under this Use License.
Information Not Deemed Confidential
Apple works with many accessory developers and
some of its products may be similar to or compete with Licensee's Licensed
Products. Apple may also be developing its own similar or competing accessories
or may decide to do so in the future. To avoid potential misunderstandings,
Apple cannot agree, and expressly disclaims, any confidentiality obligations or
use restrictions, express or implied, with respect to any information that
Licensee may provide in or in connection with this Use License, including without
limitation, ideas, suggestions, and feedback relating to the Licensed
Technology or information about unreleased products ("Licensee Disclosures").
Licensee agrees that any Licensee Disclosures will be deemed as non-confidential,
and that Apple will be free to use and disclose any Licensee Disclosures on an
unrestricted basis without notifying or compensating Licensee. Licensee
releases Apple from all liability and obligations that may arise from the
receipt, review, use, or disclosure of any portion of any Licensee Disclosure.
Information that otherwise would be deemed
Confidential Information but (i) is generally
available to the public through no fault or breach of the recipient,
(ii) is independently developed by the recipient without the use of any of
the other party's Confidential Information, or (iii) was rightfully
obtained from a third party who had the right to transfer or disclose it to the
recipient without limitation, will not be deemed Confidential Information under
this Use License.
Press Releases and Other Publicity
Licensee may
not issue any press releases or make any other public statements regarding the
terms and conditions of this Use License, and the relationship of the parties,
without Apple's express prior written approval.
6. Modifications
Apple may extend, enhance, create derivative works
of, or otherwise modify the Licensed Technology at any time without notice.
Modifications will not automatically be licensed under or subject to this Use
License. Apple may, at its sole discretion, choose to license Modifications to
Licensee under this Use License, or on different terms from those contained in
this Use License, or may choose not to license the Modifications to Licensee at
all.
Without limiting the above, Apple may disable
any portion of iOS associated with the Licensed Technology at any time without
notice to Licensee if: (i) Apple is required by a
court order or other competent government authority to disable such portion of
the Licensed Technology; (ii) Apple does not have the rights necessary to grant
the licenses set forth above; or (iii) Licensee has materially breached this
Use License.
Licensee will incorporate Modifications in
accordance with Apple's instructions, and discontinue manufacture, offering for
sale, sale, and distribution or exploitation of all Licensed Products
incorporating earlier versions of the Licensed Technology prior to the renewal
of the then-current term of this Use License.
Licensee shall be solely responsible for verifying
and certifying the compatibility of all Licensed Products with any
Modifications licensed to Licensee and for obtaining any clearances or
approvals necessary as a result of using the Licensed Product with the
Modifications. Apple assumes no liability related to any changes in performance
of Compatible iOS Products, or additional regulatory requirements arising from
the use of a Licensed Product with the Modifications.
7. Additional Terms
Licensee may choose to offer and to charge a fee
for warranty, support, or other rights consistent with the scope of the license
granted in Section 3 ("Additional Terms") to one or more recipients of a
Licensed Product. However, Licensee may do so only on its own behalf and as its
sole responsibility and not on behalf of Apple. Licensee hereby agrees to indemnify,
defend, and hold Apple harmless from any liability incurred by or claims
asserted against Apple by reason of any such Additional Terms.
8. No Warranty, Indemnity, or Support
The Licensed Technology and Compatible iOS
Products may contain errors that could cause failures or loss of data and may
be incomplete or contain inaccuracies. Licensee expressly acknowledges and
agrees that use of the Documentation and Licensed Technology is at Licensee's
sole and entire risk. The LICENSED
TECHNOLOGY and Badge are Licensed "AS IS" and without REPRESENTATION, warranty,
upgrades, or support of any kind. Apple
and Apple's AFFILIATES, licensor(s) AND SUPPLIER(S) (collectively referred to
as "Apple" FOR THE PURPOSES OF SECTIONS 8 AND 9) EXPRESSLY
DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, OF
SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, and OF ACCURACY.
APPLE Does not Warrant THAT THE LICENSED TECHNOLOGY or Compatible IOS products
WILL MEET LICENSEE'S REQUIREMENTS, THAT THEir OPERATION WILL BE UNINTERRUPTED
OR ERROR-FREE, THAT DEFECTS IN them WILL BE CORRECTED, OR THAT THEY WILL BE
COMPATIBLE WITH FUTURE apple products or software. NO ORAL OR WRITTEN INFORMATION
OR ADVICE GIVEN BY APPLE or AN APPLE-AUTHORIZED REPRESENTATIVE WILL CREATE A
WARRANTY.
Apple
provides no assurances that this Use License contains all rights necessary to
use the documentation OR THE LICENSED TECHNOLOGY, OR to use, manufacture, HAVE
MANUFACTURED, OFFER TO SELL, sell, import OR OTHERWISE DISTRIBUTE OR EXPLOIT
ANY Licensed Product incorporating LICENSED TECHNOLOGY, or to use the Badge,
and Apple expressly disclaims any warranties OF NONINFRINGEMENT OF THIRD-PARTY
RIGHTS. As a condition to exercising the licenses and other rights
granted in this Use License, Licensee assumes sole responsibility for securing
any necessary intellectual property licenses and other applicable rights.
Licensee shall defend, indemnify, and hold harmless Apple and Apple's
Affiliates, licensors, and suppliers against any claims, causes of action,
losses, liabilities, damages, fines, settlements, costs, fees, and expenses
(including attorney and other professional fees and expenses) arising out of: (i) Licensee's use of the Badge; (ii) Licensee's
use of the Licensed Technology, including any claims that the combination of
any Licensed Technology and any software, technology, intellectual property
right, device, apparatus, assembly, or data not supplied by Apple infringes any
patent, copyright, trade secret, or other intellectual property right;
(iii) the manufacture, use, promotion, distribution, sale, offer for sale,
import, other distribution or exploitation or performance of any Licensed
Product, including any personal injury or product liability claims; or (iv) any
other claim or cause of action arising out of a breach of this Use License by
Licensee.
Notwithstanding the foregoing, Licensee shall have
no obligation to defend, indemnify, or hold Apple harmless against a third-party
claim that Licensee's authorized use of the Badge in accordance with the terms
of this Use License infringes said third party's trademark rights.
Licensee will be solely responsible for manufacturing,
or having manufactured, Licensed Products that are safe, free of defects in
design, materials and workmanship, and comply with applicable laws and
regulations, and for testing, labeling, distributing, promoting, selling, and
if necessary, recalling its Licensed Products. The fact that Apple or its designee,
has reviewed, tested, or approved a Licensed Product will not relieve Licensee
of any responsibility for complying with these obligations.
Licensee acknowledges that the Licensed Technology
is not intended for any use in which the failure of a Licensed Product could
lead to death, personal injury, or severe physical or environmental damage, and Licensee hereby agrees to indemnify, defend, and
hold Apple and Apple's Affiliates, licensors, and suppliers, harmless from any
claims, causes of action, losses, liability, damages, fines, settlements,
costs, fees, and expenses (including attorney and other professional fees and
expenses) arising out of any such use.
9. Limitation Of Liability
EXCEPT TO THE EXTENT SUCH A LIMITATION IS
PROHIBITED BY LAW, IN NO EVENT WILL APPLE BE LIABLE FOR ANY INCIDENTAL,
SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF
OR RELATING TO THIS USE LICENSE OR LICENSEE'S USE OR INABILITY TO USE THE BADGE
OR THE LICENSED TECHNOLOGY OR LICENSED PRODUCT, whether under a theory of contract, warranty, tort (including
negligence), products liability, or otherwise, even if APPLE has been advised
of the possibility of such damages, AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL APPLE'S TOTAL
LIABILITY TO LICENSEE FOR ALL DAMAGES AND CLAIMS UNDER OR RELATED TO THIS USE
LICENSE EXCEED THE AMOUNT OF US$50.00.
10. Term and Termination
Term
This Use License will become effective on the
date signed by Licensee (the "Effective Date"). Unless terminated sooner
pursuant to its terms, this Use License will have an initial term of one (1)
year from the Effective Date and will automatically renew for successive
one-year terms.
Termination
This Use License and all licenses granted in
Sections 3 and 4 will terminate: (i) at the end
of its initial one-year term or any subsequent one-year term, if either party
provides written notice to the other stating that it does not wish to renew at
least 60 days before the end of such term; or (ii) for cause immediately and
automatically, without notice from Apple:
if Licensee offers for
sale, sells, distributes, or otherwise disposes of any product incorporating
the Licensed Technology in violation of this Use License;
in the event of the
circumstances described in the subsection entitled "Severability," below;
if Licensee fails to
comply with any other term of this Use License and, in the event that such
breach can be cured, fails to cure such breach within 30 days after becoming
aware of or receiving notice of such breach;
if Licensee, at any
time during the Term of this Use License, commences an action for patent
infringement against Apple or takes any action inconsistent with Apple's sole
legal and beneficial ownership of any of Apple's patents, trademarks or
copyrights; or
if Licensee becomes
insolvent, fails to pay its debts when due, makes an assignment for the benefit of creditors, or
files or has filed against it a petition in bankruptcy or insolvency.
If there is a threat of or actual lawsuit
relating to the Badge or any Licensed Technology, Apple may terminate the Badge
license granted in Section 4 or the entire Use License effective immediately.
Effect of Termination
If this Use License expires or is terminated
for any reason, all licenses granted in Sections 3 and 4 will terminate
and Licensee must immediately stop: (i) any
further use or reproduction of the Documentation; (ii) using any Licensed
Technology; (iii) manufacturing, and having manufactured, Licensed Products
incorporating any Licensed Technology; (iv) using the Badge; and
(v) selling or otherwise distributing Licensed Products incorporating any
Licensed Technology. However, if Apple terminates this Use License for its
convenience, Licensee may, for a period of 120 days after termination, and
subject to its obligations under this Use License, continue to offer to sell, sell
or otherwise distribute Licensed Products manufactured before the termination
date, and to use the Badge in connection with such Licensed Products or to
promote the iBeacon operation of a Licensed Product.
If Apple terminates the Badge license granted
in Section 4 because of a threat of or actual lawsuit in connection with the Badge,
as permitted by the subsection entitled "Termination" above, Licensee must
immediately cease use of the Badge.
Upon termination, Licensee will promptly: (a) return
all copies of the Documentation and other Licensed Technology and Apple
Confidential Information to Apple; or (b) destroy the Documentation and other
Licensed Technology and Apple Confidential Information.
Provisions that by their nature should remain
in effect after termination of this Use License will survive, including the
Sections entitled "Licensed Technology," "Confidentiality," "Modifications,"
"Additional Terms," "No Warranty, Indemnity, or Support," "Limitation of
Liability," "Term and Termination," and "Miscellaneous." Apple will not be
liable for compensation, indemnity, or damages of any sort as a result of
terminating this Use License in accordance with its terms, and termination of this
Use License will be without prejudice to any other right or remedy Apple may
have, now or in the future.
11. Miscellaneous
Export
Licensee may not export, re-export, import,
sell, or transfer Licensed Technology except as authorized by United States
law, the laws of the jurisdiction in which Licensee obtained the Licensed
Technology, and any other applicable laws and regulations. In particular,
Licensee agrees that it will not export or re-export Licensed Technology into
(or provide any Licensed Technology to a national or resident of) any country
embargoed by the United States or to anyone on the U.S. Treasury Department's
list of Specially Designated Nationals or the U.S. Department of Commerce's
Table of Denial Orders.
Relationship of Parties and Third-Party Beneficiaries
This Use License will not be construed as
creating an agency, partnership, joint venture, fiduciary duty, or any other
form of legal association between Licensee and Apple, and Licensee will not
represent to the contrary, whether expressly, by implication, appearance, or
otherwise. This Use License is not for the benefit of any third parties.
Assignment
Licensee shall provide written notice
of any acquisition of Licensee by any third party, any sale of all or
substantially all of the stock or assets of Licensee to any third party, or any
merger or Change of Control involving Licensee, in each case, no later than ten
(10) business days after the occurrence thereof. Licensee may not assign, delegate or transfer this
Use License, or any of its rights or obligations thereunder (whether
voluntarily, by operation of law, or otherwise) without Apple's prior written
consent. Any attempted assignment, transfer or other delegation without such
consent will be null and void and will constitute a material breach. For the
purposes of this subsection, a Change of Control is considered an assignment of
this Use License. This Use License will be binding upon, and inure to the
benefit of the parties and their permitted successors, transferees and
assignees.
Independent Development
Nothing in this Use License will impair Apple's
right to develop, acquire, license, market, promote, or distribute products or
technologies that perform the same or similar functions as, or otherwise
compete with, Licensed Products or any other products or technologies that
Licensee may develop, produce, market, or distribute.
Compliance with Laws
Licensee will comply with all applicable laws
and regulations (including any applicable laws and regulations relating to
export, import, the U.S. Customs Trade Partnership Against Terrorism (C-TPAT),
and applicable royalty withholding laws and regulations) and will defend,
indemnify, and hold Apple and its Affiliates harmless from any expense or
damage resulting from Licensee's violation or alleged violation of any such law
or regulation.
Notices
All notices under the Use License must be in
writing. All Licensee notices will be deemed given (i)
when delivered personally, (ii) one day after having been sent by commercial
overnight carrier specifying next-day delivery with written proof of delivery,
and (iii) three days after having been sent by first-class or certified mail,
postage prepaid, to the other party at the address below:
For notices to Apple:
To the address set forth in the definition of
"Apple" in Section 1 above: Attention: General Counsel/LF
Waiver and Construction
Failure by Apple to enforce any provision of
this Use License will not be deemed a waiver of future enforcement of that or
any other provision. Any laws or regulations that provide that the language of
a contract will be construed against the drafter will not apply to this Use
License. Section headings are for convenience only and are not to be considered
in construing or interpreting this Use License. The word "party" means a party
to this Use License, and the phrase "third party" means any person,
partnership, corporation, or other entity not a party to this Use License. The
words "will" and "shall" are used in a mandatory, not a permissive or
predictive, sense, and the word "including" is intended to be exemplary, not
exhaustive, and will be deemed followed by "without limitation."
Severability
If a court of competent jurisdiction finds any
part of this Use License unenforceable for any reason, that part of this Use
License will be enforced to the maximum extent permissible so as to effect the
intent of the parties, and the remainder of this Use License will continue in
full force and effect. However, if applicable law prohibits or restricts
Licensee from fully and specifically complying with the Section of this Use
License entitled "Licensed Technology" or "iBeacon Badge"
or prevents the enforceability of either of those Sections, this Use License
will immediately terminate and Licensee must immediately discontinue any use of
the Licensed Technology and Badge as described in the Section entitled "Term
and Termination."
Dispute Resolution
Any litigation or other dispute resolution
between Licensee and Apple arising out of or relating to this Use License, the
Licensed Technology, or Licensee's relationship with Apple will take place in
the United States District Court for the Northern District of California, and
Licensee and Apple hereby consent to the personal jurisdiction of and exclusive
venue in the state and federal courts within that District with respect to any
such litigation or dispute resolution. This Use License will be governed by and
construed and enforced under the laws of the United States and the State of
California, except that body of California law concerning conflicts of law. The
application of the United Nations Convention on Contracts for the International
Sale of Goods is expressly excluded.
Equitable Relief
Licensee hereby acknowledges that unauthorized
disclosure or use of Confidential Information could cause irreparable harm and
significant injury to Apple that may be difficult to ascertain. Accordingly,
Licensee agrees that Apple will have the right to obtain immediate injunctive
relief to enforce obligations under this Use License without requirement of a
bond in addition to any other rights and remedies it may have.
Government End Users
If the Licensed Technology is supplied to the
United States Government, it shall be classified as "restricted computer
software" as defined in clause 52.227-19 of the FAR. The United States
Government's rights to the Licensed Technology are as provided in clause
52.227-19 of the FAR.
Entire Agreement; Modifications to this License
This Use License (including all documentation
made available to Licensee) constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings relating to its
subject matter. It may be modified only by a written amendment signed by
both parties, or by Apple, as permitted otherwise by this Use License. The
parties expressly acknowledge that they have received and are in possession of
a copy of, or have been given electronic access to and have reviewed, any
referenced item not physically attached to this Use License and any such item
will be treated as if attached.
If Licensee is located in the province of
Quebec, Canada, the following clause applies: The parties hereby confirm that they
have requested that this Use License 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.
Counterparts and Electronic Signature
This Use License may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument. Licensee agrees that its acceptance of
this Use License may be signified electronically, including without limitation,
by checking a box or clicking on an "agree" or similar button.
EA 1321
9/10/2015
