This Mutual Non-Disclosure Agreement (this “Agreement”) is made on 09/26/2023(the “Effective Date”) and entered into by and between：
Thundercomm Technology Co., Ltd., a corporation established and existing under the laws of China, with its legal address at Building 4,99# Xiantao Data Valley Zhonglu, Yubei District, Chongqing 401120,China, including, its parent company, directly or indirectly controlled subsidiaries and affiliated companies under the common control of the parent company (hereinafter referred to as “Thundercomm”), and {text-2}, organized and existing under the laws of with its legal address at {text-4} (hereinafter referred to as “Company”).
Thundercomm and Company shall hereinafter be referred to individually as a “Party” and collectively as the “Parties”.
WHEREAS, Thundercomm and the Company intend to evaluate the other party’s products, services, business and/or technology in connection with the establishment of a business, cooperation or consultancy relationship between the Parties (hereinafter referred to as the “Project”);WHEREAS, in order to determine their interest in entering into such Project, the Parties wish to exchange or to provide one another with access to their respective “Confidential Information” (as defined below), without undermining its confidential nature and economic value.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants, terms and conditions hereinafter set forth in this Agreement, the Parties agree as follows:
1. Confidential Information 1.1 The term “Confidential Information” shall include and mean any and all confidential technical and business information which is hereafter disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”) orally, visually, electronically or in writing. Such Confidential Information may include, but is not limited to, drawings, specifications, memoranda, operational data, photographs, models, prototypes, designs, materials, constructions, computer firmware and software, manufacturing methods and techniques, quality control and test methods and data, costs and pricing, financial information, marketing and sales data and plans, and product applications, etc.1.2 The Disclosing Party will endeavor to mark or otherwise identify Confidential Information which is disclosed to the Receiving Party in written or electronic form as being “confidential” (or with a substantially equivalent legend) and to confirm to the Receiving Party in writing within fifteen（15）days the substance of such Confidential Information which is first disclosed to the Receiving Party orally or visually. 1.3 Such Confidential Information shall not include information which:(i) was lawfully in the possession of the Receiving Party prior to receiving it from the Disclosing Party;(ii) is in the public domain at the time of disclosure or becomes part of the public domain through no fault of the Receiving Party; (iii) is independently developed by the Receiving Party without reference, directly or indirectly to the Confidential Information and without breach of this Agreement;(iv) is obtained in good faith from a third party not under any obligation of secrecy;(v) is transmitted by a Disclosing Party after receiving notification in writing from the Receiving Party that it does not desire to receive any further Confidential Information;(vi) is furnished to a third party by the Disclosing Party without similar restrictions on the third party’s rights; or(vii) is ordered by a court of competent jurisdiction to be produced by the Receiving Party; provided, however, that upon receipt of any such order, the Receiving Party shall immediately notify the Disclosing Party of such order so that an appropriate protective agreement or order may be sought.
2. Obligations of the Receiving Party 2.1 Receiving Party shall treat all Confidential Information of the Disclosing Party as strictly confidential and secure, using the same degree of care the Receiving Party uses to protect its own confidential information, but not less than a reasonable degree of care, and without the prior written consent of the Disclosing Party: (i)Not to divulge or disclose to third parties, including, but not limited to, any vendor, customer, manufacturer or independent contractor, in whole or in part, nor orally nor in writing nor in pictorial form nor on CD nor in whatsoever other form, any other Party's Confidential Information without the other Party's prior express consent in writing;(ii)Not to reverse engineering, disassemble, decompile, or otherwise analyze the Confidential Information;(iii)Not to distribute or disclose in any way or form any other Party's Confidential Information to anyone except to the employees of the Receiving Party who each of them reasonably need to know such Confidential Information;(iv)Not to use, in whole or in part, any other Party's Confidential Information for any purpose other than the Project;(v)Not to divulge or disclose to third parties the fact that it is participating in the Project;(vi)Not to divulge or disclose to third parties, in whole or in part, the results of the Project, whether completed or not.2.2 Return of Confidential Information. Unless otherwise required by applicable law or regulation or by any competent judicial, governmental, supervisory or regulatory body (including without limitation, any stock exchange), the Receiving Party shall either destroy or return to the Disclosing Party immediately upon the termination of this Agreement or its request all copies of the Confidential Information and all documents and any and all materials (in any medium), which contain, summarize or embody the Confidential Information or any part thereof, which are then in the possession of the Receiving Party, its Transferees and/or under any of their control, without retaining copies thereof, and in either case shall certify in writing within ten (10) days of receiving such a request, its compliance with the terms of this provision.
3. No Rights or Licenses Granted. The disclosure of the Confidential Information pursuant to this Agreement shall not grant the Receiving Party any express or implied license or right in such Confidential Information, including without limitation any right or license to any patent, trademark, copyright, trade secret, moral right or any other right recognized by any law or regulation of any jurisdiction worldwide (collectively, “Intellectual Property Rights”). The Disclosing Party and/or its licensors are and shall remain at all times the owners of all Intellectual Property Rights in any Confidential Information, to be used by the Receiving Party only for the Purpose. Each Party agrees that it shall not remove or otherwise alter any of the Disclosing Party's trademarks, logos, copyright notices or other proprietary notices or indicia, if any, fixed or attached to the Confidential Information or any part thereof.
4. Warranty Each Party warrants that it has the right to disclose all Confidential Information disclosed to the other party, and it will indemnify and defend the other Party from third-party claims resulting from the negligent or wrongful disclosure of such third-party's confidential information. The disclosure of any Confidential Information by either Party shall not constitute any other representation or warranty by that Party, including regarding the accuracy of the same or the non-infringement of any patent, trademark, copyright or any other intellectual property or proprietary right.
5. No Obligation.5.1Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply any obligation or intention by either Party to make any coopera-tion or otherwise enter into any other business relationship with the other Party. 5.2 This Agreement does not require, nor may it be implied that either Party shall be required, to disclose any particular information or data to the other Party hereunder. Unless otherwise agreed in writing, each Party shall perform hereunder solely at its own cost and expense.6. Term 6.1 This Agreement shall become effective as of the Effective Date and shall continue in effect ___3__ years following the Effective Date, unless terminated by either Party, effective thirty(30) days following written notice by one Party to the other. However, all obligations of the Parties hereto with respect to the Confidential Information shall survive any termination of this Agreement and shall remain in full force and effect for a period of five (5) years following the termination or expiration hereof.
6.2 Any Confidential Information relating to the Project of this Agreement exchanged between the Parties prior to the Effective Date shall be consider to fall under the terms of this Agreement.
7. RemedyEach Party acknowledges that a breach of this Agreement would cause the Disclosing Party irreparable harm which monetary damages will be insufficient to remedy. Accordingly, the Disclosing Party, as the case may be, in addition to any other remedies available at law, shall be entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach.
8. Miscellaneous8.1 Amendments. Any amendments of, and supplements to this Agreement shall be made in writing. The requirement that such amendments and supplements must be made in writing can only be waived in writing.8.2 Assignment. Neither Party shall assign or transfer this Agreement or part of this Agreement or any rights or obligations thereunder to or for the benefit of any third party without the prior written consent from the other Party: any assignment without such consent shall be null and void. The foregoing shall not apply to any assignment made to a successor corporation in the event that a Party changes its corporate name or merges with another corporation.8.3 Publicity. Neither Party shall make any announcement regarding the existence or provisions of this Agreement to a third party without the prior written approval of the other Party.8.4 Entire Agreement. This Agreement shall constitute the full and entire agreement between the Parties with respect to the confidentiality and non-disclosure of the Confidential Information and shall supersede any and all prior or contemporaneous agreements and understandings relating thereto. No change, modification, or addition to any provision of this Agreement shall be binding unless made in writing and executed by the duly authorized representatives of both Parties. This Agreement may not be assigned by either Party without the consent of the other Party. 8.5 Severability. If a competent court holds that (i) any of the provisions contained in this Agreement is for any reason excessively broad with regard to time, geographic scope or activity, that provision shall be construed in a manner to enable it to be enforced to the maximum extent compatible with applicable law; (ii) any provision in this Agreement is void or unenforceable, such determination shall not affect the validity or enforceability of any other term or provision. 8.6 Governing Law and Settlement of Dispute. This Agreement shall be governed in all respects by the laws of the People’s Republic of China (Mainland). Should a dispute arise between the Parties relating to this Agreement, the Parties agree to work together in good faith to resolve the dispute. To such purpose the Parties will promptly hold a meeting, attended by persons having decision making authority regarding the dispute, to attempt and negotiate a commercially reasonable agreed solution thereof. If the Parties cannot reach an amicable solution within 30 (thirty) days from the written request of any of the Parties to the other, the dispute shall be finally settled by an arbitration in accordance with the Rules of Arbitration of the Beijing Arbitration Committee by an arbitration panel composed of three arbitrators, each of them fluent in English and Chinese, appointed in compliance with said Rules. The arbitration proceedings shall take place in Beijing, conducted in the English and Chinese language. The decision of the arbitration proceedings shall be final and binding on the Parties. Enforcement of the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
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This is a legally binding agreement (“Agreement”) by and between Thundercomm Technology Co., Ltd. (“Thundercomm”) and {text-2} , with the address at {text-2} (“Licensee”), effective on 09/26/2023 (“Effective Date”).
ATTENTION: THE DEVELOPMENT PLATFORM SOFTWARE PROVIDED UNDER THIS AGREEMENT IS LICENSED TO LICENSEE AND NOT SOLD. ANY OPEN SOURCE SOFTWARE THAT IS PART OF THE DEVELOPMENT PLATFORM SOFTWARE IS BEING DISTRIBUTED TO LICENSEE BY THUNDERCOMM, AND SUBJECT TO THE APPLICABLE OPEN SOURCE LICENSE TERMS, THE OPEN SOURCE SOFTWARE IS BEING LICENSED TO LICENSEE, AND NOT SOLD, BY THE APPLICABLE PROJECT OR DEVELOPER THAT CREATED SUCH OPEN SOURCE SOFTWARE. THE LICENSE PROVISIONS OF THIS AGREEMENT DEFINE WHAT LICENSEE MAY DO WITH THE DEVELOPMENT PLATFORM SOFTWARE. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE DEVELOPMENT PLATFORM SOFTWARE AND ANY SUPPORT OR SERVICE(S) THAT THUNDERCOMM MAY PROVIDE TO LICENSEE IN RESPECT TO THE DEVELOPMENT PLATFORM SOFTWARE.IMPORTANT: PLEASE CAREFULLY READ THIS AGREEMENT, WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH LICENSEE IS ACQUIRING A LICENSE TO USE THE DEVELOPMENT PLATFORM SOFTWARE. THUNDERCOMM RESERVES THE RIGHT TO REJECT ANY REQUEST FOR ACCESS TO THE DEVELOPMENT PLATFORM SOFTWARE. IF LICENSEE IS AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, LICENSEE REPRESENTS AND WARRANTS THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
For the purposes of this Agreement:
“Affiliate” means, with respect to Licensee, Thundercomm or a Licensor (as defined below), as the case may be, any corporation or other entity that, at any time, directly or indirectly, Controls, is Controlled by or is under common Control with Licensee, Thundercomm or a Licensor, as the case may be (but only as long as such Control exists). For the purpose of this definition, the term “Control” means (i) the beneficial ownership (whether direct or indirect) of more than fifty percent (50%) of the voting power of an entity or (ii) in the case of an entity that does not have outstanding voting shares or securities, the majority (i.e., more than fifty percent (50%)) of the equity interests in such entity that is now or hereafter owned or controlled by another entity, either directly or indirectly.
“Development Platform Hardware” means a hardware development platform, which is either (i) sold by Thundercomm and based on one or more Ancillary Components by Qualcomm Technologies, Inc. (“QTI”), or (ii) purchased from a QTI-approved purchaser or distributor based on one or more Ancillary Components.
“Development Platform Software” means collectively, or individually, as applicable: any software or firmware of Thundercomm or its Licensors, in object code and/or source code form, that is licensed by Thundercomm to Licensee pursuant to this Agreement solely for use on Development Platform Hardware.
“Documentation” means any and all written or electronic documentation, including user manuals, reference materials, and/or installation manuals that Thundercomm generally makes available to Licensees of the Development Platform Software.
“Intellectual Property Rights” or “IPR” means patents (including patent applications, reissues, divisions, continuations and extensions thereof, all sometimes individually and/or collectively referred to herein as “Patent(s)”), utility models, copyrights, trade secrets, mask work rights, and any other form of intellectual property right protection, excluding trademarks and service marks, afforded under the laws of the United States or any other jurisdiction or bi-lateral or multi-lateral international treaty regime.
“Licensor(s)” means any third party that licenses software to Thundercomm for use in the Development Platform Software.
“Open Source Software” means any software licensed under Open Source License Terms.
“Open Source License Terms” means the licensing and/or distribution models commonly known as “open source software” or “free software” or any other licensing and/or distribution models pursuant to which software is made generally available to the public in source code form under terms that permit modification and redistribution of such software. By way of example only and without limitation, Open Source License Terms include any versions of the following agreements, licenses or distribution models: (1) the GNU General Public License (GPL); (2) Lesser/Library GPL (LGPL); (3) the Common Development and Distribution License (CDDL); (4) the Artistic License (including without limitation PERL); (5) the Netscape Public License; (6) the Sun Community Source License (SCSL) or the Sun Industry Standards License (SISL); (7) the Apache License; (8) the Common Public License; (9) the Affero GPL (AGPL); (10) the Berkeley Software Distribution (BSD); (11) the Mozilla Public License (MPL); and (12) any other licenses that are defined as OSI (Open Source Initiative) licenses as listed on the opensource.org website.
“Reciprocal Open Source Software” means Open Source Software licensed under Reciprocal Open Source License Terms.
“Reciprocal Open Source License Terms” means terms in any license or agreement for software which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed or combined with such software (a “Work”), any of the following: (a) the making available of source code, object code, or design information regarding the Work; (b) the granting of permission for creating derivative works regarding the Work; or (c) the granting of a royalty-free license to anyone under Intellectual Property Rights in respect to the Work, including, without limitation the GPL and LGPL.
1. Scope. These terms and conditions apply to the Development Platform Software that Licensee receives from Thundercomm which is being licensed, not sold, to Licensee. Any other terms or conditions stated by Licensee that are different from, or in addition to, these terms and conditions shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Agreement. Thundercomm expressly rejects additional or different terms.
2. Software License. Subject to the terms and conditions of this Agreement (including, without limitation those terms, conditions and restrictions set forth in Sections 3 (Restrictions), 4 (Ownership) and 5 (Open Source Software) below) and payment of the applicable fees, if any, Thundercomm hereby grants to Licensee (a) a non-exclusive limited, copyright license to use the Development Platform Software solely in conjunction with the Development Platform Hardware; provided, however, that the Development Platform Software is to be used only in connection with such products that Licensee owns or controls for the duration of the useful life of the associated Development Platform Hardware (unless this Agreement is terminated sooner as provided in this Agreement), and (b) a non-exclusive, limited, copyright license to use the Documentation solely for the duration of the useful life of the associated Development Platform Hardware (unless this Agreement is terminated sooner as provided in this Agreement). Neither this Agreement, nor any act by Thundercomm or its Licensors or any of their respective Affiliates pursuant to this Agreement or relating to the Development Platform Software shall provide to Licensee any license or any other rights whatsoever under any Intellectual Property Rights of Thundercomm or its Licensors or any of their respective Affiliates, except for the copyright rights expressly set forth in this Section 2. Licensee understands and agrees that: (i) neither this Agreement, nor the delivery of the Development Platform Software alone or when used in conjunction with the Development Platform Hardware, grants any right to practice, or any other right at all with respect to, any Patent of Thundercomm and its Licensors or any of their respective Affiliates; and (ii) a separate license agreement from Thundercomm and/or its Licensors, as the case may be, is needed to use or practice any Patent of Thundercomm or its Licensors or any of their respective Affiliates. Licensee agrees not to contend in any context that, as a result of the provision or use of the Development Platform Software alone or in conjunction with the Development Platform Hardware, either Thundercomm or its Licensors or any of their respective Affiliates has any obligation to extend, or Licensee or any other party has obtained any right to, any license, whether express or implied, with respect to any Patent of Thundercomm or its Licensors or any of their respective Affiliates for any purpose. Neither this Agreement nor the delivery of the Development Platform Software alone or when used in conjunction with the Development Platform Hardware, modifies or abrogates Licensee’s obligations under any other agreement between Licensee and Thundercomm or its Licensors or any of their respective Affiliates.
3. Restrictions. Licensee agrees not to, and will not encourage others to: (i) alter, modify, translate, or adapt any Development Platform Software or create any derivative works based thereon except in the case of any Open Source Software whereby the applicable Open Source License Terms shall apply; (ii) decompile, reverse engineer or disassemble any Development Platform Software or otherwise attempt to learn the source code, structure or algorithms underlying any of the Development Platform Software which may be provided in object or source code form; (iii) copy any Development Platform Software except as expressly permitted in this Agreement; (iv) assign, sublicense, distribute or otherwise transfer or commercially exploit any Development Platform Software in whole or in part; (v) use the Development Platform Software except as expressly permitted in this Agreement; (vi) disclose any Development Platform Software to any third party; or (vii) otherwise make the Development Platform Software available for value. In addition, Licensee is not permitted to use the Development Platform Software in any device that (a) is capable, under any circumstance (including, without limitation, by software or firmware modifications), of initiating or receiving any CDMA or OFDMA based wireless wide area network communications including but not limited to such networks implementing IS-95, cdmaOne, cdma2000, EV-DO, W-CDMA, UMTS, HSPA, TD-SCDMA, LTE, WiMax and any updates or revisions thereto, or (b) implements wireless broadcast functionality in accordance with any wireless broadcast specifications ratified or adopted as a standard by any nationally or internationally recognized standards organization for development of or use in any wireless network. Failure to meet or maintain the requirements set forth in this Section 3 shall be a material breach of this Agreement and result in the immediate termination of this Agreement pursuant to Section 10 (Termination).
With regard to any related Documentation provided to Licensee, Licensee may reproduce a reasonable number of copies of such Documentation, and use such Documentation as permitted above in Section 2 (Software License) of this Agreement. Distribution of the Documentation is prohibited without the express written permission of Thundercomm, which it can withhold, condition or delay in its sole discretion.
4. Ownership. Licensee acknowledge and agree that Thundercomm and its Licensors shall retain all right, title, and interest in and to the Development Platform Software and any improvements thereof, including without limitation all copyrights, patent rights and trademark rights and all other Intellectual Property Rights therein, and Licensee shall not remove any copyright notices or other legends from the Development Platform Software or any accompanying Documentation. Except for the limited copyright right granted to Licensee under Section 2 (Software License) with respect to the use of the Development Platform Software, Licensee further acknowledges and agrees that Thundercomm has no right to sublicense or otherwise grant any rights under any other Intellectual Property Rights of its Licensors or Affiliates of such Licensors, including, without limitation, any Patents of its Licensors or Affiliates of such Licensors.
5. Open Source Software. The Development Platform Software may contain Open Source Software. The terms and conditions governing Licensee’s use of such Open Source Software shall be in accordance with the Open Source License Terms associated with such Open Source Software. Licensee shall not make the portions of the Development Platform Software that are proprietary to Thundercomm or its Licensors available pursuant to any Open Source License Terms. Licensee shall not use, combine, modify, distribute, make the Development Platform Software a derivative work of or otherwise exploit the Development Platform Software in connection with any Reciprocal Open Source Software in any manner that would cause the Development Platform Software to become subject to any Reciprocal Open Source License Terms, and Licensee shall restrict each of Licensee’s subcontractors and customers in the same manner.
6. Feedback. Thundercomm may from time to time receive suggestions, feedback or other information from Licensee concerning the Development Platform Software and/or Documentation. Any suggestions, feedback or other disclosures made by Licensee is and shall be entirely voluntary on Licensee’s part. Notwithstanding any other term in this Agreement, Thundercomm and its Licensors shall be free to use Licensee’s suggestions, feedback or other information in the further development of the Development Platform Software and/or Documentation, without obligation of any kind to Licensee. Licensee agrees that all inventions, product improvements, and modifications to the Development Platform Software and Documentation conceived of or made by Thundercomm and/or its Licensors that are based, either in whole or in part, on Licensee’s ideas, feedback, suggestions, or recommended improvements are the exclusive property of Thundercomm and/or its Licensors, and all right, title and interest in and to any such inventions, product improvements, and modifications will vest solely in Thundercomm and/or its Licensors, as the case may be.7. Technical Support and Updates. Notwithstanding anything to the contrary hereunder, Licensee acknowledges and agree that Thundercomm and its Licensors (i) are under no obligation to provide any form of technical support for the Development Platform Software; and (ii) have no obligation to provide any updates to the Development Platform Software under this Agreement. If Thundercomm chooses to provide any form of support or information relating to the Development Platform Software, such support and information shall be deemed confidential and proprietary to Thundercomm and/or its Licensors, as the case may be, and shall be protected in accordance with Section 8 (Confidentiality).
8. Confidentiality. The Development Platform Software, Documentation and all related information provided hereunder are confidential and proprietary to Thundercomm and/or its Licensors. Licensee agrees that Licensee will only use the Development Platform Software, Documentation and all related information in accordance with the terms set forth in this Agreement. Unauthorized use or disclosure of the Development Platform Software, Documentation and/or all related information would cause irreparable harm and significant injury to Thundercomm and/or its Licensors that would be difficult to ascertain or quantify; accordingly Licensee agrees that Thundercomm and/or its Licensors shall have the right to obtain injunctive or other equitable relief to enforce the terms of this Agreement without limiting any other rights or remedies.9. Term. This Agreement shall commence upon the earlier of the date that Licensee first downloads or uses the Development Platform Software and the date that Licensee accepts this Agreement, and shall continue until terminated in accordance with Section 10 (Termination).
10. Termination. This Agreement shall terminate immediately, without notice, if Licensee fails to comply with any term or condition of this Agreement. If either party files a petition in bankruptcy or is adjudicated a bankrupt, or if a petition in bankruptcy is filed against either party and such petition is not discharged within sixty (60) days of such filing, or if either party becomes insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if either party discontinues its business or if a receiver is appointed for it or its business, this Agreement shall automatically terminate without any notice whatsoever being necessary. In addition, Thundercomm may terminate this Agreement at any time upon notice to Licensee or by posting notice on Thundercomm’s website. Termination of this Agreement shall be without prejudice to any other remedy which may be available to Thundercomm due to default of this Agreement. Upon termination of this Agreement for any reason, all licenses granted by Thundercomm to Licensee under this Agreement shall terminate, and Licensee shall immediately, at Thundercomm's option, either return or destroy (and certify to the same) the Development Platform Software and Documentation, including all confidential information of Thundercomm and its Licensors. Any termination of this Agreement shall not prejudice Thundercomm's right to recover any sums due or accrued at the time of such termination and shall not prejudice any cause of action or claim accrued or to accrue on account of any breach or default. The parties' rights and obligations which by their sense and context are intended to survive any termination or expiration of this Agreement shall so survive, including but not limited to, Section 3 (Restrictions). Section 4 (Ownership), Section 6 (Feedback), Section 8 (Confidentiality), Section 10 (Termination), Section 11 (Disclaimer of Warranty), Section 12 (Limitation of Liability), Section 13 (Indemnification), Section 14 (Covenant Not to Assert), Section 15 (Government Compliance), Section 16 (U.S. Government End Users), Section 17 (Third Party Beneficiary) and Section 19 (Miscellaneous).11. Disclaimer of Warranty. THE DEVELOPMENT PLATFORM SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS.” THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS REGARDING THE DEVELOPMENT PLATFORM SOFTWARE AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES DO NOT WARRANT THAT THE OPERATION OF THE DEVELOPMENT PLATFORM SOFTWARE AND DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THUNDERCOMM, ITS LICENSORS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE DEVELOPMENT PLATFORM SOFTWARE OR DOCUMENTATION, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR TORT, NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT, TORT, NEGLIGENCE OR ANYTHING ELSE), THE ENTIRE LIABILITY (IN THE AGGREGATE) OF THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES UNDER ANY PROVISION OF THIS AGREEMENT AND LICENSEE’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO TEN DOLLARS ($10). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
13. Indemnification. Licensee will fully defend, indemnify and hold each of Thundercomm, its Licensors and their respective Affiliates, officers’ directors, employees, agents, successors and assigns harmless from and against any and all claims, demands, losses, damages, judgments, costs, liabilities and expenses (including attorneys’ fees) arising out of or related to: (i) Licensee’s use or misuse of the Development Platform Software and/or Documentation, including, without limitation, any use, reproduction or distribution of the Development Platform Software and/or Documentation by Licensee, which causes an infringement of any patent, copyright, trademark, trade secret, or other Intellectual Property Rights or publicity or privacy rights of any third parties arising in any jurisdiction anywhere in the world; (ii) the applications and/or services developed by Licensee, whether alone or in combination; and (iii) any breach of this Agreement by Licensee. If requested by Thundercomm, Licensee agrees to defend Thundercomm and its Licensors in connection with any third party claims, demands, or causes of action resulting from, arising out of or in connection with any of the foregoing.
14. Covenant Not to Assert. Licensee hereby agrese that neither Licensee nor any of Licensee’s Affiliates will assert any action for the infringement of Licensee’s or Licensee’s Affiliates’ Patents against (i) Thundercomm, its Licensors or their respective Affiliates for making (or having made), importing,using, selling, licensing or otherwise disposing of Development Platform Materials (as defined below); (ii) Thundercomm, its Licensors or their respective Affiliates, foundries, for making Development Platform Materials for, or selling Development Platform Materials to, Thundercomm, its Licensors or their respective Affiliates; or (iii) any direct or indirect customers of Thundercomm, its Licensors or their respective Affiliates, for using Development Platform Materials purchased from Thundercomm, its Licensors or their respective Affiliates. As used herein, the term “Development Platform Materials” means the Development Platform Software, Development Platform Hardware and any subcomponents or software embedded within the foregoing, including without limitation, any application specific integrated circuits (ASICs), multi-chip modules, electronic devices, integrated circuits, system in package (SIP), system on Chip (SoC), system on module (SOM) and including firmware thereon and accompanying or associated software.
15. Government Compliance. Licensee shall be solely responsible for knowing and complying with any and all applicable federal, state and local statutes, laws and regulations, including, but not limited to, knowing and complying with any applicable Federal Communications Commission rules and regulations, as well as any federal, state and local statutes, laws and regulations pertaining to privacy, data protection and information security, with respect to the use of the Development Platform Software and/or Documentation. Licensee acknowledges that all hardware, software, source code and technology (collectively, "Products") obtained from Thundercomm and its Licensors are subject to the US and Canadian government export control and economic sanctions laws. Licensee shall ensure that Licensee, Licensee’s subsidiaries and Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, "export") any Products or direct products thereof to any destination, person, entity or end use prohibited or restricted under US and/or Canadian laws without prior US and/or Canadian government authorization, as the case may be, to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan, Libya and Syria, but any amendments to the countries under a US embargo or sanction shall apply. Licensee acknowledges that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with the same is the responsibility of Licensee. This Section shall survive the expiration or termination of this Agreement. Licensee shall not Export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China.
16. U.S. Government End Users. If Licensee is acting on behalf of an agency or instrumentality of the U.S. government, the Development Platform Software, is “commercial computer software” and developed exclusively at private expense by Thundercomm and/or its Licensors, as the case may be. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Development Platform Software is governed by the terms of this Agreement.
17. Third Party Beneficiary. Licensors of Thundercomm and their Affiliates are third party beneficiaries of this Agreement, and thus this Agreement is directly enforceable by such Licensors and their Affiliates.
18. Non-Exclusive. It is expressly understood that this Agreement is non-exclusive for both parties. Except as specifically agreed otherwise, this Agreement does not grant either party any exclusive privileges of rights.
19. Miscellaneous. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of laws principles. Any dispute, claim, or controversy arising from or relating to this Agreement or the breach or validity hereof (each, a “Dispute”) will be finally settled by a confidential arbitration proceeding conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”). The place of arbitration will be Singapore. The language of the arbitration will be English. Except as may be required by law, Licensee may not disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Thundercomm. The arbitrator’s award will be final and binding on the parties. Licensee agrees that judgment may be entered upon such an award in any court of competent jurisdiction. Licensee on behalf of itself, Licensee’s subsidiaries and Affiliates, acknowledge and agree that (i) no Affiliate is a third party beneficiary of this Agreement, (ii) no Affiliate shall have any standing to initiate any claim or cause of action under this Agreement, and (iii) any and all claims against Thundercomm and/or its Licensors which may arise under this Agreement shall be brought solely and exclusively by Licensee. In the event of any proceeding to enforce the provisions of this Agreement or to resolve any claim or dispute arising from or related to this Agreement, the prevailing party (as determined by the arbitrator) shall be entitled to reasonable attorneys' fees as fixed by the arbitrator. If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement which shall continue in full force and effect, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent permissible the intent and agreements of the parties set forth herein. Any failure by either party to enforce any of its rights under this Agreement shall not be deemed a waiver of any right which such party has under this Agreement.
This Agreement shall be binding upon and inure to the benefit of any successor or permitted assignee of each of the parties. Neither party shall assign or otherwise transfer any of its rights, obligations or licenses under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Thundercomm shall be entitled to assign all or any part of its rights or obligations under this Agreement to one or more of its Affiliates or to a purchaser of all or substantially all of its business, assets or stock.
The restrictions, limitations, exclusions and conditions set forth in this Agreement shall apply even if Thundercomm, its Licensors or any of their Affiliates become aware of or fails to act in a manner to address any violation or failure to comply therewith. Licensee hereby acknowledges and agree that the restrictions, limitations, conditions and exclusions imposed in this Agreement on the rights granted in this Agreement are not a derogation of the benefits of such rights. Thundercomm and Licensee is independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership. This Agreement is the entire and exclusive agreement between Thundercomm and Licensee with respect to the Development Platform Software and Documentation which Licensee has received hereunder and supersedes all prior agreements between Thundercomm and Licensee, along with any other communications (whether written or oral) between Thundercomm and Licensee. No purchase order or other ordering document of Licensee’s which purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement unless signed by an authorized representative of each of the parties. The terms of this Agreement may only be varied by written amendment between the parties and signed by a duly authorized representative of each party.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their duly authorized representative:
The Licensed Development Platform Software and Applicable Development Platform Hardware may be updated by both Parties in writing time to time and the updated Licensed Development Platform Software shall be governed by this Agreement.