iBeacon License
Purpose
Licensee would like to: (i)use certain Apple technology (the "Licensed Technology," as defined in Section1 below) in Licensee products (the "Licensed Products," as defined in Section 1below), and sell such products to Licensee's customers, under Licensee's brand,directly or indirectly through resellers and distributors; and/or (ii) use theLicensed Technology in Licensed Products for sale or distribution under the labelor brand of a third party; and/or (iii) use Apple's proprietary iBeacon Wordmark and/or graphicdesigns (the "Badge") in connection with Licensee's products and/or to promotethe operation of iBeacon Licensed Technology asincorporated in a Licensed Product. Apple is willing to grant Licensee alimited license to use the Licensed Technology in certain Licensed Products and/orto use the Badge in connection with such Licensed Products, or as otherwisedescribed 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 aredefined as follows:
"Affiliate"means a corporation or other entitycontrolled by, controlling, or under common control with a party, and"controlled by," "control" or "controlling" means: (i) theownership, directly or indirectly, of more than 50% of the voting stock oranalogous interest in such corporation or other entity; or (ii) theexistence of any other relationship between such party and such othercorporation or entity which results in effective managerial control by one overthe other, regardless whether such control is continuously exercised.
"Apple" means Apple Inc., aCalifornia corporation with its principal place of business at 1 InfiniteLoop, Cupertino, California 95014.
"Badge"means the "iBeacon" graphic design made available by Apple uponacceptance of this Use License.
"Badge Guidelines"means the mostrecent version of the Apple iBeacon guidelines thatApple makes available to Licensee upon acceptance of this Use License, whichguidelines are incorporated in this Use License by this reference.
"Change of Control" means (a) thereorganization, merger or consolidation, or sale or other disposition ofsubstantially all of the assets of Licensee, or (b) the acquisition by anyindividual, entity or group of the direct or indirect beneficial ownership of50% or more of either Licensee's then-outstanding shares of common stock or thecombined voting power of the then-outstanding voting securities of Licenseeentitled to vote generally in an election of directors.
"Compatible iOS Product"means all Appleproducts that are designed to interoperate with the Licensed Technology and thatare capable of downloading and executing iOS Applications.
"Documentation"means the LicensedSpecifications, any mechanical, electrical, or signal characteristics, or anyother specifications or documentation that Apple may make available or provideto Licensee relating to or for use in connection with Licensed Technology.
"Effective Date"means the date thisUse License was signed by Licensee.
"iOS Application"means a softwareprogram designed to run on a Compatible iOS Product that was developed usingApple's iOS SDK pursuant to and in accordance with an iOS Developer ProgramLicense Agreement.
"iOS Developer Program License Agreement"means an executed and in-effect agreement with Apple granting those licensesnecessary to use Apple's iOS SDK to develop and test iOS Applications for usewith Compatible iOS Products.
"Licensed Product" means a Licenseeproduct that controls or interfaces, communicates, or otherwise interoperateswith Compatible iOS Products in accordance with the Documentation and this UseLicense.
"Licensed Technology" means the iBeacon Licensed Specifications, as amended by Apple fromtime to time, and any other Documentation, devices, digital keys, key sets,source code, object code, or other technology provided by Apple, in its solediscretion, under this Use License for use by Licensee in connection with a LicensedProduct.
"Licensed Specifications" means the mostcurrent versions of each of the specification documents made available by Appleupon acceptance of this Use License, and as amended by Apple from time to time.
"Licensee" means the legal entity licensedpursuant to this Use License upon its acceptance.
"Modification" means any additionto, deletion from, or change made by Apple to the substance or structure ofLicensed Technology. Any Modifications licensed by Apple under this Use Licensewill be deemed to be "Licensed Technology."
"Term" means the period described in the firstparagraph of Section 10.
"Use License" means this iBeacon License, includingall the documentation made available to Licensee by Apple, each of which isincorporated by reference.
2. Licensed Products
Licensee hereby agrees and acknowledges that each product,and any and all of its versions and upgrades, which implements LicensedTechnology, meets, at Licensee's expense, the following requirements: (i) is compatible with all Compatible iOS Products, (ii) meetsthe requirements of the Licensed Specifications and other Documentation, and (iii)complies with all other requirements and restrictions set forth in this UseLicense.
Additional Restrictions or Requirements
Applicable laws or regulations may imposeadditional restrictions or requirements with respect to Licensed Products thatare not addressed in Apple's Licensed Specifications or this Use License.Licensee is solely responsible for determining such restrictions orrequirements, and Licensee hereby represents and warrants that it is in fullcompliance 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 therequirements of the U.S. Federal Communications Commission ("FCC"), includingbut not limited to, compliance with all SAR requirements, as well as the laws,regulations, and policies of any other applicable legislative or regulatorybodies in any location where Licensee designs, manufactures, markets, offers tosell, sells, uses, distributes, operates, or otherwise makes Licensed Productsavailable.
Licensee will not seek any regulatory permissionor make any representations or determinations that may result in any CompatibleiOS Products being deemed regulated or subject to additional legal orgovernmental requirements, or that may impose any obligations or limitations onApple.
Licensee will not use or alter the Licensed Technologyto transmit or otherwise collect user data, device data, location data, or anypersonally identifiable information without first obtaining the user's consent todo 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 marketLicensed Products that implement Licensed Technology only for their cleared orapproved intended use/indication for use, and only in strict compliance withapplicable regulatory requirements. Licensee agrees to promptly notify Apple ofany complaints or threats of complaints regarding such Licensed Products inrelation to any such regulatory requirements, in which case, at Apple'sdirection, Licensee will immediately suspend all sales and distribution of suchLicensed 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 isrequired to secure such rights. Licensee must execute an iOS Developer ProgramLicense Agreement as a condition for exercising the rights granted under thisUse License. Execution of this Use License does not constitute approval of anassociated iOS Application for distribution on Apple's App Store. For furtherinformation regarding development, marketing, and distribution of iOSApplications, please refer tohttps://developer.apple.com/.
3. Licensed Technology
Permitted Uses
Subject to the terms and conditions of this UseLicense, Apple hereby grants Licensee a limited, non-exclusive, personal, non-sublicensable, and non-transferable license under Apple'sintellectual property rights to:
a)Make and distribute a reasonablenumber of copies of the Documentation to employees and contractors with ademonstrable need to know, for their internal use only, and only for thepurpose of developing Licensed Products;
b)Incorporate Licensed Technology in LicensedProducts, including by implementing the Licensed Specifications in source codeor object code, to permit such Licensed Products to interoperate withCompatible iOS Products in accordance with the Documentation, and to manufacture,or have manufactured, a reasonable number of Licensed Products for testpurposes;
c)Manufacture, or have manufactured,Licensed Products incorporating Licensed Technology;
Import, offer to sell, sell, orotherwise distribute Licensed Products incorporating Licensed Technology to Licensee'scustomers, 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 sourcecode to those of its employees, contractors, or another iBeaconLicensee, with a demonstrable need-to-know, for their internal use, without theright of redistribution, and only for the purpose of developing LicensedProducts that implement Licensed Technology; and
Licensee may only distribute objectcode, as a software file, to those of its employees, contractors, or another iBeacon Licensee, with a demonstrable need-to-know, fortheir internal use, without the right of redistribution, and only for thepurpose of developing Licensed Products, and to Licensee customers for the soleand 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 noticesand 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 LicensedTechnology, 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, tobe subject to all or part of the license obligations or other intellectualproperty related terms with respect to such Public Software. As used in thissubsection, "Public Software" means any software that, as a conditionof use, copying, modification or redistribution, (a) requires attribution, (b)requires such software and derivative works thereof to be disclosed ordistributed in source code form, or (c) requires such software to be licensed for the purpose ofmaking derivative works, or to be redistributed free of charge, commonlyreferred to as free or open source software, including but not limited to softwarelicensed 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 interestin and to the Licensed Technology and any Modifications, including anyModifications that Apple may choose to make available to Licensee under thisUse License, as well as all intellectual property rights in and to suchModifications. Licensee will cooperate with Apple to perfect and maintainApple's ownership of the Licensed Technology and any Modifications, andLicensee agrees to promptly provide notice of any infringement,misappropriation, or any other claims relating to the Licensed Technology orModifications.
No Other Permitted Uses
Licensee may use the Licensed Specifications, anyother materials provided by Apple, and all other Licensed Technology,regardless of the source or manner through which Licensee obtains suchmaterials,only to permit LicensedProducts to interoperate with Compatible iOS Products in accordance with rightsgranted under this Use License, and not for any other purpose or in connectionwith any other products or services. Licensee may not add to, delete from,extend, enhance, improve, modify or create any derivative works of any LicensedTechnology, or modify any of the design, mechanical, electrical, or signalcharacteristics of any Licensed Technology, or use any Licensed Technology forany purpose not expressly permitted by this Use License. Licensee may notdecompile, disassemble, or otherwise reverse engineer any software or hardwaresupplied or specified by Apple without Apple's express prior written consent(except to the extent permitted by applicable law which cannot be waived bythis subsection). Nothing in this Use License shall be construed as anagreement to bring or prosecute actions against any third party that isinfringing, misappropriating or violating any Licensed Technology. All licensesnot 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 aLicensed Product with any other item shall not, by itself, affect the licensesgranted hereunder with respect to such Licensed Product, but in no event is anylicense, covenant or other form of immunity granted by Apple under this UseLicense for any such combination or its use.
4. iBeacon Badge
Licensee's Use of the iBeacon Badge
Unless Apple specifiesotherwise, Licensee must use on the product packaging of each Licensed Product theBadge shown in the graphic design document made available by Apple uponacceptance of this Use License. In addition, Licensee may use the Badge in theuser guide for each Licensed Product, and in any advertisements, web pages, andother collateral materials promoting the Licensed Products. Licensee may also usethe Badge to promote the iBeacon operation of aLicensed Product. Apple hereby grants Licensee a limited, personal,non-exclusive, non-sublicensable, andnon-transferable license to the Badge to do so, subject to the terms andconditions of this Use License. Licensee must use the Badge in strictaccordance with Apple's Badge Guidelines.
Licensee understands and agrees that this Use Licensedoes not permit use of the Badge on any Licensed Product itself or on any labelsaffixed to a Licensed Product. Licensee agrees that it will not use the Badgein any way not expressly permitted by this Use License without Apple's priorwritten consent.
Samples
Upon Apple's request, Licensee will providesamples of any materials on which the Badge appears so that Apple may verifyLicensee's compliance with this Use License. All samples must be shown incontext with surrounding text and other graphic elements. In the eventrequested, Licensee will provide samples at no cost to Apple, and Apple willnot be obligated to return the samples to Licensee.
Ownership
The Badge and the iBeaconword mark ("Wordmark") are proprietary trademarksowned solely and exclusively by Apple, and Licensee acknowledges the value ofthe goodwill associated with the Badge and Wordmark, andagrees that any goodwill from Licensee's use of the Badge or Wordmark exclusively inures to the benefit of and belongsto 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'sownership of the Badge and Wordmark, such as filingany trademark application for identical or similar logos or trademarks anywherein the world, now or in the future. Licensee may not use the Badge or Wordmark in any manner that suggests Apple's endorsement orrecommendation of the Licensed Product or otherwise creates a false associationwith Apple, nor may Licensee use the Badge or Wordmarkon or in connection with anything that is unlawful or encourages unlawfulconduct or in any manner that may, in Apple's sole discretion, be deemed inpoor taste. Apple reserves all rights to control, commence, prosecute, ordefend any action or claim concerning the Badge and Wordmark.Licensee will cooperate with Apple to maintain Apple's ownership of the Badgeand Wordmark, and Licensee agrees to promptly providenotice of any claims relating to the Badge, Wordmarkor other Apple trademarks.
No Other Licenses
This Use License does not grant any licenses,immunity, or rights, expressly or by implication, estoppel, or otherwise, touse 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 wholeor combination, except as set forth in the published guidelines for using Appletrademarks athttp://www.apple.com/legal/intellectual-property/guidelinesfor3rdparties.html, and Licensee agrees that it will comply with thoseguidelines as modified by Apple from time to time.
5. Confidentiality
Obligations Regarding Confidential Information
Licensee agrees to protect Apple's ConfidentialInformation using at least the same degree of care that it uses to protect itsown confidential information of similar importance, but no less than areasonable degree of care. Licensee agrees to use Apple's ConfidentialInformation solely for the purpose of exercising its rights and performing itsobligations under this Use License and agrees not to use the ConfidentialInformation 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 ConfidentialInformation to anyone other than those of its employees and contractors, whohave a need to know and who are bound by a written agreement that prohibitsunauthorized use or disclosure of the Confidential Information. Licensee maydisclose Apple's Confidential Information to the extent required by law,provided that it takes reasonable steps to notify Apple of such requirementbefore disclosing the Confidential Information, obtains protective treatment ofthe Confidential Information, and discloses the minimal amount of ConfidentialInformation required to satisfy such judicial, administrative or other order.
Information Deemed Confidential
The terms and conditions of this Use License, theLicensed Technology, including any non-public information that Licensee learnsabout Apple's products or its business in connection with this Use License orin 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 andsome of its products may be similar to or compete with Licensee's LicensedProducts. Apple may also be developing its own similar or competing accessoriesor may decide to do so in the future. To avoid potential misunderstandings,Apple cannot agree, and expressly disclaims, any confidentiality obligations oruse restrictions, express or implied, with respect to any information thatLicensee may provide in or in connection with this Use License, including withoutlimitation, ideas, suggestions, and feedback relating to the LicensedTechnology 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 anunrestricted basis without notifying or compensating Licensee. Licenseereleases Apple from all liability and obligations that may arise from thereceipt, review, use, or disclosure of any portion of any Licensee Disclosure.
Information that otherwise would be deemedConfidential Information but (i) is generallyavailable to the public through no fault or breach of the recipient,(ii) is independently developed by the recipient without the use of any ofthe other party's Confidential Information, or (iii) was rightfullyobtained from a third party who had the right to transfer or disclose it to therecipient without limitation, will not be deemed Confidential Information underthis Use License.
Press Releases and Other Publicity
Licensee maynot issue any press releases or make any other public statements regarding theterms 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 worksof, or otherwise modify the Licensed Technology at any time without notice.Modifications will not automatically be licensed under or subject to this UseLicense. Apple may, at its sole discretion, choose to license Modifications toLicensee under this Use License, or on different terms from those contained inthis Use License, or may choose not to license the Modifications to Licensee atall.
Without limiting the above, Apple may disableany portion of iOS associated with the Licensed Technology at any time withoutnotice to Licensee if: (i) Apple is required by acourt order or other competent government authority to disable such portion ofthe Licensed Technology; (ii) Apple does not have the rights necessary to grantthe licenses set forth above; or (iii) Licensee has materially breached thisUse License.
Licensee will incorporate Modifications inaccordance with Apple's instructions, and discontinue manufacture, offering forsale, sale, and distribution or exploitation of all Licensed Productsincorporating earlier versions of the Licensed Technology prior to the renewalof the then-current term of this Use License.
Licensee shall be solely responsible for verifyingand certifying the compatibility of all Licensed Products with anyModifications licensed to Licensee and for obtaining any clearances orapprovals necessary as a result of using the Licensed Product with theModifications. Apple assumes no liability related to any changes in performanceof Compatible iOS Products, or additional regulatory requirements arising fromthe use of a Licensed Product with the Modifications.
7. Additional Terms
Licensee may choose to offer and to charge a feefor warranty, support, or other rights consistent with the scope of the licensegranted in Section 3 ("Additional Terms") to one or more recipients of aLicensed Product. However, Licensee may do so only on its own behalf and as itssole responsibility and not on behalf of Apple. Licensee hereby agrees to indemnify,defend, and hold Apple harmless from any liability incurred by or claimsasserted against Apple by reason of any such Additional Terms.
8. No Warranty, Indemnity, or Support
The Licensed Technology and Compatible iOSProducts may contain errors that could cause failures or loss of data and maybe incomplete or contain inaccuracies. Licensee expressly acknowledges andagrees that use of the Documentation and Licensed Technology is at Licensee'ssole and entire risk. The LICENSEDTECHNOLOGY and Badge are Licensed "AS IS" and without REPRESENTATION, warranty,upgrades, or support of any kind. Appleand Apple's AFFILIATES, licensor(s) AND SUPPLIER(S) (collectively referred toas "Apple" FOR THE PURPOSES OF SECTIONS 8 AND 9) EXPRESSLYDISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED,INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, OFSATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, and OF ACCURACY.APPLE Does not Warrant THAT THE LICENSED TECHNOLOGY or Compatible IOS productsWILL MEET LICENSEE'S REQUIREMENTS, THAT THEir OPERATION WILL BE UNINTERRUPTEDOR ERROR-FREE, THAT DEFECTS IN them WILL BE CORRECTED, OR THAT THEY WILL BECOMPATIBLE WITH FUTURE apple products or software. NO ORAL OR WRITTEN INFORMATIONOR ADVICE GIVEN BY APPLE or AN APPLE-AUTHORIZED REPRESENTATIVE WILL CREATE AWARRANTY.
Appleprovides no assurances that this Use License contains all rights necessary touse the documentation OR THE LICENSED TECHNOLOGY, OR to use, manufacture, HAVEMANUFACTURED, OFFER TO SELL, sell, import OR OTHERWISE DISTRIBUTE OR EXPLOITANY Licensed Product incorporating LICENSED TECHNOLOGY, or to use the Badge,and Apple expressly disclaims any warranties OF NONINFRINGEMENT OF THIRD-PARTYRIGHTS. As a condition to exercising the licenses and other rightsgranted in this Use License, Licensee assumes sole responsibility for securingany necessary intellectual property licenses and other applicable rights.Licensee shall defend, indemnify, and hold harmless Apple and Apple'sAffiliates, 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'suse of the Licensed Technology, including any claims that the combination ofany Licensed Technology and any software, technology, intellectual propertyright, device, apparatus, assembly, or data not supplied by Apple infringes anypatent, 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 LicensedProduct, including any personal injury or product liability claims; or (iv) anyother claim or cause of action arising out of a breach of this Use License byLicensee.
Notwithstanding the foregoing, Licensee shall haveno obligation to defend, indemnify, or hold Apple harmless against a third-partyclaim that Licensee's authorized use of the Badge in accordance with the termsof 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 indesign, materials and workmanship, and comply with applicable laws andregulations, and for testing, labeling, distributing, promoting, selling, andif necessary, recalling its Licensed Products. The fact that Apple or its designee,has reviewed, tested, or approved a Licensed Product will not relieve Licenseeof any responsibility for complying with these obligations.
Licensee acknowledges that the Licensed Technologyis not intended for any use in which the failure of a Licensed Product couldlead to death, personal injury, or severe physical or environmental damage, and Licensee hereby agrees to indemnify, defend, andhold Apple and Apple's Affiliates, licensors, and suppliers, harmless from anyclaims, causes of action, losses, liability, damages, fines, settlements,costs, fees, and expenses (including attorney and other professional fees andexpenses) arising out of any such use.
9. Limitation Of Liability
EXCEPT TO THE EXTENT SUCH A LIMITATION ISPROHIBITED BY LAW, IN NO EVENT WILL APPLE BE LIABLE FOR ANY INCIDENTAL,SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OFOR RELATING TO THIS USE LICENSE OR LICENSEE'S USE OR INABILITY TO USE THE BADGEOR THE LICENSED TECHNOLOGY OR LICENSED PRODUCT, whether under a theory of contract, warranty, tort (includingnegligence), products liability, or otherwise, even if APPLE has been advisedof the possibility of such damages, AND NOTWITHSTANDING THE FAILURE OFESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL APPLE'S TOTALLIABILITY TO LICENSEE FOR ALL DAMAGES AND CLAIMS UNDER OR RELATED TO THIS USELICENSE EXCEED THE AMOUNT OF US$50.00.
10. Term and Termination
Term
This Use License will become effective on thedate signed by Licensee (the "Effective Date"). Unless terminated soonerpursuant to its terms, this Use License will have an initial term of one (1)year from the Effective Date and will automatically renew for successiveone-year terms.
Termination
This Use License and all licenses granted inSections 3 and 4 will terminate: (i) at the endof its initial one-year term or any subsequent one-year term, if either partyprovides written notice to the other stating that it does not wish to renew atleast 60 days before the end of such term; or (ii) for cause immediately andautomatically, without notice from Apple:
if Licensee offers forsale, sells, distributes, or otherwise disposes of any product incorporatingthe Licensed Technology in violation of this Use License;
in the event of thecircumstances described in the subsection entitled "Severability," below;
if Licensee fails tocomply with any other term of this Use License and, in the event that suchbreach can be cured, fails to cure such breach within 30 days after becomingaware of or receiving notice of such breach;
if Licensee, at anytime during the Term of this Use License, commences an action for patentinfringement against Apple or takes any action inconsistent with Apple's solelegal and beneficial ownership of any of Apple's patents, trademarks orcopyrights; or
if Licensee becomesinsolvent, fails to pay its debts when due, makes an assignment for the benefit of creditors, orfiles or has filed against it a petition in bankruptcy or insolvency.
If there is a threat of or actual lawsuitrelating to the Badge or any Licensed Technology, Apple may terminate the Badgelicense granted in Section 4 or the entire Use License effective immediately.
Effect of Termination
If this Use License expires or is terminatedfor any reason, all licenses granted in Sections 3 and 4 will terminateand Licensee must immediately stop: (i) anyfurther use or reproduction of the Documentation; (ii) using any LicensedTechnology; (iii) manufacturing, and having manufactured, Licensed Productsincorporating any Licensed Technology; (iv) using the Badge; and(v) selling or otherwise distributing Licensed Products incorporating anyLicensed Technology. However, if Apple terminates this Use License for itsconvenience, Licensee may, for a period of 120 days after termination, andsubject to its obligations under this Use License, continue to offer to sell, sellor otherwise distribute Licensed Products manufactured before the terminationdate, and to use the Badge in connection with such Licensed Products or topromote the iBeacon operation of a Licensed Product.
If Apple terminates the Badge license grantedin Section 4 because of a threat of or actual lawsuit in connection with the Badge,as permitted by the subsection entitled "Termination" above, Licensee mustimmediately cease use of the Badge.
Upon termination, Licensee will promptly: (a) returnall copies of the Documentation and other Licensed Technology and AppleConfidential Information to Apple; or (b) destroy the Documentation and otherLicensed Technology and Apple Confidential Information.
Provisions that by their nature should remainin effect after termination of this Use License will survive, including theSections entitled "Licensed Technology," "Confidentiality," "Modifications,""Additional Terms," "No Warranty, Indemnity, or Support," "Limitation ofLiability," "Term and Termination," and "Miscellaneous." Apple will not beliable for compensation, indemnity, or damages of any sort as a result ofterminating this Use License in accordance with its terms, and termination of thisUse License will be without prejudice to any other right or remedy Apple mayhave, 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 Stateslaw, the laws of the jurisdiction in which Licensee obtained the LicensedTechnology, 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 countryembargoed by the United States or to anyone on the U.S. Treasury Department'slist of Specially Designated Nationals or the U.S. Department of Commerce'sTable of Denial Orders.
Relationship of Parties and Third-Party Beneficiaries
This Use License will not be construed ascreating an agency, partnership, joint venture, fiduciary duty, or any otherform of legal association between Licensee and Apple, and Licensee will notrepresent to the contrary, whether expressly, by implication, appearance, orotherwise. This Use License is not for the benefit of any third parties.
Assignment
Licensee shall provide written noticeof any acquisition of Licensee by any third party, any sale of all orsubstantially all of the stock or assets of Licensee to any third party, or anymerger 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 thisUse License, or any of its rights or obligations thereunder (whethervoluntarily, by operation of law, or otherwise) without Apple's prior writtenconsent. Any attempted assignment, transfer or other delegation without suchconsent will be null and void and will constitute a material breach. For thepurposes of this subsection, a Change of Control is considered an assignment ofthis Use License. This Use License will be binding upon, and inure to thebenefit of the parties and their permitted successors, transferees andassignees.
Independent Development
Nothing in this Use License will impair Apple'sright to develop, acquire, license, market, promote, or distribute products ortechnologies that perform the same or similar functions as, or otherwisecompete with, Licensed Products or any other products or technologies thatLicensee may develop, produce, market, or distribute.
Compliance with Laws
Licensee will comply with all applicable lawsand regulations (including any applicable laws and regulations relating toexport, 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 ordamage resulting from Licensee's violation or alleged violation of any such lawor regulation.
Notices
All notices under the Use License must be inwriting. All Licensee notices will be deemed given (i)when delivered personally, (ii) one day after having been sent by commercialovernight 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 ofthis Use License will not be deemed a waiver of future enforcement of that orany other provision. Any laws or regulations that provide that the language ofa contract will be construed against the drafter will not apply to this UseLicense. Section headings are for convenience only and are not to be consideredin construing or interpreting this Use License. The word "party" means a partyto this Use License, and the phrase "third party" means any person,partnership, corporation, or other entity not a party to this Use License. Thewords "will" and "shall" are used in a mandatory, not a permissive orpredictive, sense, and the word "including" is intended to be exemplary, notexhaustive, and will be deemed followed by "without limitation."
Severability
If a court of competent jurisdiction finds anypart of this Use License unenforceable for any reason, that part of this UseLicense will be enforced to the maximum extent permissible so as to effect theintent of the parties, and the remainder of this Use License will continue infull force and effect. However, if applicable law prohibits or restrictsLicensee from fully and specifically complying with the Section of this UseLicense entitled "Licensed Technology" or "iBeacon Badge"or prevents the enforceability of either of those Sections, this Use Licensewill immediately terminate and Licensee must immediately discontinue any use ofthe Licensed Technology and Badge as described in the Section entitled "Termand Termination."
Dispute Resolution
Any litigation or other dispute resolutionbetween Licensee and Apple arising out of or relating to this Use License, theLicensed Technology, or Licensee's relationship with Apple will take place inthe United States District Court for the Northern District of California, andLicensee and Apple hereby consent to the personal jurisdiction of and exclusivevenue in the state and federal courts within that District with respect to anysuch litigation or dispute resolution. This Use License will be governed by andconstrued and enforced under the laws of the United States and the State ofCalifornia, except that body of California law concerning conflicts of law. Theapplication of the United Nations Convention on Contracts for the InternationalSale of Goods is expressly excluded.
Equitable Relief
Licensee hereby acknowledges that unauthorizeddisclosure or use of Confidential Information could cause irreparable harm andsignificant injury to Apple that may be difficult to ascertain. Accordingly,Licensee agrees that Apple will have the right to obtain immediate injunctiverelief to enforce obligations under this Use License without requirement of abond in addition to any other rights and remedies it may have.
Government End Users
If the Licensed Technology is supplied to theUnited States Government, it shall be classified as "restricted computersoftware" as defined in clause 52.227-19 of the FAR. The United StatesGovernment's rights to the Licensed Technology are as provided in clause52.227-19 of the FAR.
Entire Agreement; Modifications to this License
This Use License (including all documentationmade available to Licensee) constitutes the entire agreement between theparties and supersedes all prior agreements and understandings relating to itssubject matter. It may be modified only by a written amendment signed byboth parties, or by Apple, as permitted otherwise by this Use License. Theparties expressly acknowledge that they have received and are in possession ofa copy of, or have been given electronic access to and have reviewed, anyreferenced item not physically attached to this Use License and any such itemwill be treated as if attached.
If Licensee is located in the province ofQuebec, Canada, the following clause applies: The parties hereby confirm that theyhave requested that this Use License and all related documents be drafted inEnglish. Les parties ont exigéque 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, shallconstitute one and the same instrument. Licensee agrees that its acceptance ofthis 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
