Important – Please carefully read the following Terms and Conditions (“Agreement”). This is a legally binding agreement. If after reading this Agreement you apply for a Development Kit, your purchase order will be understood as an acceptance of this Agreement. Do not proceed with an application unless: (1) you are authorized to accept and agree to the terms of this Agreement on behalf of yourself or your company; and (2) you intend to enter and to be bound by the terms of this legally binding Agreement on behalf of yourself or your company. You or your company are referred to in this Agreement as the “Customer”.
The MK UWB Kit RTLS is a set of hardware, software tools and documentation that allows the Customer to quickly prototype indoor UWB Real Time Location Systems (RTLS) solutions based on Time Difference of Arrival (TDoA) and NXP Trimension™ UWB IoTICs. The MK UWB Kit RTLS includes a ready-to-run demonstration app and hardware to start developing UWB RTLS applications.
This Agreement applies to the software, user manuals/guides, installation guides, hardware design files and any other associated documentation contained in the MK UWB Kit RTLS which Avant Studio Proyectos S.L. (“AS”) provides to the Customer who purchases a MK UWB Kit RTLS in whole or in part (“Development Kit”).
AS and the Customer may be referred individually as a “Party”, and collectively, as the “Parties”.
1. Extent of License.
- 1.1. AS grants to Customer a non-exclusive, non-transferable license of the Development Kit to create, develop, manufacture, and sell derivative UWB RTLS works generated from, or in connection with, or using the Development Kit (“Generated Technology”). The aim of the Development Kit is to enable the Customer to prototype new UWB RTLS solutions based on TDoA NXP Trimension™ UWB IoTICs, being able to add the Customer’s own hardware, to customize its own application, to perform tests or set different configurations depending on the requirements.
- 1.2. The License permits the use of the Development Kit only to the extent that such use is necessary for the abovementioned purposes but is subject to Customer satisfying the following conditions:
- 1.2.1. To exclude liability of AS and its affiliates or subsidiary companies in respect of the Development Kit and the Generated Technology to the full extent legally possible in all its dealings with or exploitation of the same;
- 1.2.2. Do not deface, remove, obliterate, or otherwise interfere with any copyright notice of AS on the Development Kit;
- 1.2.3. Customer shall not perform, nor allow, authorize, or assist others in, reverse engineering, decompilation, disassembly, photographic or video reproduction, or the like upon the Development Kit to attempt to learn information about the internal architecture, design, operation, manufacture, features, or functionality, beyond that information provided to Customer in no way. Nothing in this Agreement will be construed to limit Customer’s ability to design, develop, debug, optimize or support Customer’s Generated Technology without use of or access to the Development Kit;
- 1.2.4. To not settle or compromise or negotiate the settlement of any third-party claim for breach of Industrial and/or Intellectual Property in respect of the Development Kit without the prior written consent of AS.
- 1.3. The License shall become effective as of the date on which the last signor subscribes the Agreement and shall remain in force indefinitely.
2. Title of the Development Kit.
- 2.1. Customer shall have the right to modify or enhance the Development Kit as permitted in this Agreement, owning the Intellectual Property in those elements of the Generated Technology created by the Customer.
- 2.2. Customer’s use of any library or software provided with the Development Kit shall also be subject to the Terms and Conditions of any written license agreement included with the library or software as provided by AS. In the absence of an express license, the use will of libraries or software will be subject to the Terms and Conditions of this Agreement.
- 2.3. As the MK UWB Kit RTLS contains NXP chipset and products, the Parties hereby agree that NXP Semiconductors Netherlands B.V. (“NXP”) is a third-party beneficiary of this Agreement, and that the terms of this Agreement are enforceable by NXP, in addition to being enforceable by and against the Parties.
3. Relationship of the parties.
The relationship between AS and the Customer (including their officers, employees or agents) is of licenser and licensee, and the Parties:
- 3.1. Shall not be deemed to be agents or representatives, legal or otherwise of the other for any purpose; and
- 3.2. Are not granted any express or implied right or authority to assume or create an obligation responsibility on behalf of or in the name of the other or to the other in any manner.
- 4.1. In consideration of the License granted to in this Agreement, the Customer shall pay to AS a one-time fee for the Development Kit payable upon the purchase order of the Development Kit.
- 4.2. Unless otherwise agreed in writing by AS the payment shall be made in Euros.
- 4.3. The payment is expressed net of any value added or sales tax properly due thereon which shall be paid by the Customer in addition, as well as other taxes and charges. Customer agrees to indemnify and hold AS harmless against any such liabilities.
- 5.1. CIP 2020 Incoterm shall apply for Delivery Kit shipping to Customer’s address.
- 5.2. AS shall not bear any liability resulting from any delay in the delivery of the Development Kit to the Customer.
- 6.1. AS warrants that it has sufficient right, title, and interest in the Development Kit to enter this Agreement.
- 6.2. Customer acknowledges that the Development Kit have not been prepared to meet Customer’s individual requirements and it is therefore the responsibility of Customer to ensure that the applications and functions of the Development Kit meet its requirements. The License herein operates as a permission only and does not imply any obligation or liability on the part of AS in respect of quality, fitness for any particular purpose, suitability, performance, maintenance, or support of the Development Kit, including any warranty of non-infringement of the Industrial/Intellectual Property Rights of any third-party, except as expressly provided in this Agreement.
- 6.3. Customer acknowledges that Development Kit, as a tool designed to develop a Generated Technology, and is provided “As Is”. AS is under no obligation to provide updates, upgrades, support, or maintenance of any kind under this Agreement. AS does not warrant the Development Kit is error or bug free or perform or function as intended. To the maximum extent permitted by applicable law, AS and its suppliers disclaim all warranties and conditions regarding or arising out of the Development Kit. Customer will use the Development Kit at its own risk, and expressly waives and disclaims any warranty of any nature, whether express or implied, relating to Development Kit including, but not limited to the warranty of being free from any hidden, latent, or apparent defect or deficiency and all warranties implied under any applicable statute, or any other provision of applicable law.
- 6.4. Customer acknowledges that the Development Kit or portions thereof may not have received all regulatory approvals required by governmental authorities and standards organizations for finished products as the Development Kit is being provided solely for development purposes. Customer is responsible for ascertaining and complying with all applicable governmental regulations for the use of the Development Kit in the appropriate jurisdiction.
- 6.5. To the extent AS provides notice to the Customer of instructions regarding labeling or use of the Development Kit, Customer will strictly comply with all such instructions.
- 6.6. In the event of any claim of infringement of third-party Industrial and/or Intellectual Property Rights being made in respect of the Development Kit, AS shall be entitled at its sole discretion, at its cost to:
- 6.6.1. Procure the right for Customer to continue to use the Development Kit or any part thereof the subject of the infringement without change; and/or
- 6.6.2. Make with equivalent functionality, performance, and characteristics such alterations, modifications or adjustments to the Development Kit or any part thereof subject of breach to make it not infringe third-party Industrial and/or Intellectual Property Rights, and/or
- 6.6.3. Replace in kind the Development Kit or any part thereof the subject of infringement with substitutes with equivalent functionality, performance, and characteristics.
- 6.7. If there is an infringement of third-party Industrial and/or Intellectual Property Rights resulting from the Generated Technology, then AS will not held liable.
- 6.8. The liability of AS in contract, tort, negligence or otherwise arising out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to a sum equal to the aggregate of the Payment paid by the Customer to AS.
- 6.9. In any event neither Party shall be liable to the other under, or in connection with this Agreement, in contract, tort, negligence or otherwise for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
- 6.10. In any event, AS shall not be liable to Customer under or in connection with this Agreement, in contract, tort, negligence or otherwise for any loss of business contracts, profits or any other indirect or consequential or economic loss whatsoever which results from Customer’s use of the Generated Technology.
- 6.11. Customer shall indemnify AS forthwith on demand and hold it harmless of any loss, claim or damage to persons or property arising out of Customer’s use or possession of the Development Kit, the Generated Technology or related material.
7. Industrial and Intellectual Property Rights.
- 7.1. AS retain all right, title and interest in all the Intellectual and Industrial Property rights of the Development Kit. With respect to the third-party components included in the Development Kit, the rights, titles, and interests over the Intellectual and Industrial Property may be held by the respective third-party suppliers.
- 7.2. The provisions of this Agreement do not grant any rights to Customer in respect of the use of any trademark of AS, which is hereby specifically excluded.
- 7.3. Customer shall notify AS if it becomes aware of any unauthorized use of the Development Kit or breach of AS Industrial and/or Intellectual Property Rights therein.
- 8.1. To assist AS in identifying problems with and making improvements to the Development Kit, AS invites Customer to provide Feedback. For this Agreement “Feedback” means suggestions, comments, feedback, or ideas, which Customer may, but is not obligated to, provide to AS and which (a) is strictly related to the Development Kit, (b) is provided in written form during the term of this Agreement, and (c) is clearly marked by Customer as “Feedback” at the moment of provision.
- 8.2. Such Feedback, ideas, or proposals, including new ideas for new products, technologies, or services that Customer gives to AS, will be understood given without charge, royalties, or other obligation to Customer, the right to make, have made, create, derivative works, use, share and commercialize the Feedback in any way and for any purpose.
The License granted herein is personal to Customer and Customer shall not directly or indirectly assign, transfer, sell, lease, distribute, lend, give, sublicense part with or sublet any interest in it or grant any right under it to any third-party without AS prior written consent, provided that Customer assignment to an acquirer of substantially all of Customer’s assets, stock or business shall not require AS consent, except to Customer’s assignment to a direct competitor of AS. In the event of a sale or merger of the Customer to a direct competitor of AS, AS will be able at its sole discretion to request the Customer the buyback of the Development Kit to a 25% of its acquisition price.
- 10.1. Both AS, Customer and its affiliates (i.e. any corporation or legal entity that the Parties now or hereafter controls directly or indirectly by owning of more than 50% of the shares or similar interests entitled to vote) agree with each other to keep all information that they obtain about the other concerning the business, finances, technology and affairs of the other, and in particular, but not limited to the Development Kit (including but not limited to the Source Code, capabilities/information/errata/tests/measurements gained through its use, as well as bugs, errors or any other problems), and regardless of its nature, strictly confidential (“Confidential Information”).
- 10.2. Both parties, hereby agree with each other:
- 10.2.1. To procure that all persons or entities (including employees) to whom they do disclose the Confidential Information keep it strictly confidential and that they are bound by the Terms and Conditions of this Agreement; and
- 10.2.2. To take the appropriate measures at any time to protect the confidential nature of the Confidential Information, measures that will not be less than those applied by it to its own Confidential Information, assuming in any case, the following obligations:
- 10.2.2.1. To protect and safeguard the Confidential Information from unauthorized use, publication, or disclosure.
- 10.2.2.2. To take all necessary measures to protect the privacy of Confidential Information and ensure the strict compliance of the confidentiality commitments assumed with the signature of this Agreement.
- 10.2.2.3. Not to use the Confidential Information for purposes other than those provided for in this Agreement.
- 10.2.2.4. Not to use the Confidential Information to make unfair competition or gain an unfair advantage with respect the other Party.
- 10.2.2.5. Not remove any copyright notice, trademark notice, and other proprietary legend set forth on or contained within any of the Confidential Information.
- 10.2.2.6. When any of the Confidential Information includes personal data identifiable with any individual, fully comply with Regulation (EU) 2016/679 (EU GDPR) and any other applicable law.
- 10.2.2.7. Report quickly and effectively any breach or well-founded possibility of breach of the provisions contained in this Agreement.
- 10.2.2.8. In the event of the loss of the Confidential Information or the disclosures or any part thereof, or its coming to the knowledge of any third-party, give immediate written notice thereof to the other Party.
- 10.3. Obligations set forth by this Agreement shall not apply with regards to any information which:
- 10.3.1. Has become public information through no fault of the other Party, its employees, its directors, its officers, and its collaborators and legal or other professional advisors.
- 10.3.2. Was legally known by the other Party without any restriction on its disclosure or use, prior to the disclosure thereof by the other Party.
- 10.3.3. It is disclosed to the other Party by a third-party which is not under any confidential obligation of such information.
- 10.3.4. Is independently ascertainable by the other Party or developed by its employees, directors, officers, and collaborators and legal or other professional advisors who have not had access to the Confidential Information and without any use whatsoever of any know-how or other information or support provided.
- 10.3.5. Is required to be disclosed pursuant to a law or court order, provided to notify the other Party in advance and with a sufficient period which permits to assert any exclusions or privileges that may be applicable by law.
- 10.3.6. AS shares with NXP and its affiliates.
- 10.4. The access to Confidential Information shall not imply the acquisition of any right over such Confidential Information (save in accordance with the Terms and Conditions of this Agreement).
- 10.5. The obligations regarding Confidential Information will remain in force for a period of 5 years.
- 11.1. The Agreement constitutes the entire Agreement between AS and Customer with respect to the licensing of the Development Kit.
- 11.2. No variation of the terms of this Agreement shall be binding on either Party unless it is made in writing and signed.
- 11.3. Each Party agrees not to take any action that would or does adversely affect the reputation or goodwill of either Party or its products.
- 11.4. All notices of breach must be in writing in English. Notice is treated as given upon receipt, as verified by written automated receipt or electronic log, as applicable.
- 11.5. These Terms and Conditions are drafted in the English language only. English will be the controlling language in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding on the Parties.
- 11.6. If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision shall, to such extent as it shall be determined to be illegal, invalid, or unenforceable, under such law, be null and void but this Agreement shall otherwise remain in full force and effect.
- 11.7. This Agreement shall be governed by the laws of the Kingdom of Spain. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with this Agreement or the transactions contemplated hereby must be brought in the courts of Barcelona (Spain).