ZXPICOFREE SOFTWARE LICENSE AGREEMENT
This software license agreement (hereinafter "Agreement") applies to "zxPicoFree for MSP430 and EW430 Software" (hereinafter "ZXPICO"), licensed by ZX Technologies, Inc. or any of its subsidiaries (hereinafter "ZXTECH") and you (hereinafter "Licensee"). ZXPICO is a particular version of zxPico software for use with Texas Instruments' MSP430 Microcontrollers and IAR EW430 V4.xx software tools. ZXPICO will be distribued to Licensee via a ZIP file, as an e-mail attachment or web download. Subsequent updates to ZXPICO, if any, will be provided in similar fashion. ZXPICO will be labeled as "zxPicoFree_MSP430_EW430_V3xx_update.zip", where "xx" will vary based on past, present and future versions of the software and "_update" will only be applied to ZIP files that only contain incremental updates from the specified base version.
OPENING OF A DISTRIBUTION FILE, WHERE THESE TERMS HAVE BEEN STATED OR REFERRED TO, AND ANY USE OF ZXPICO WILL BE SUBJECT TO THESE TERMS AND CONDITIONS. YOU, AS A USER OF THE LICENSED PRODUCT, WILL BIND THE INDIVIDUAL, ORGANIZATION OR CORPORATION TO THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT IN AGREEMENT WITH THE TERMS HEREIN, OR YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ORGANIZATION OR CORPORATION TO THESE TERMS, YOU SHALL IMMEDIATELY CONTACT ZXTECH AND YOU MAY NOT OPEN, INSTALL OR USE ANY PART OF ZXPICO.
1. DEFINITIONS
The following terms shall have the meanings set forth below whenever they are used in this Agreement:
1.1 "Executable Software" shall mean copies of executable or object code versions of the software programs that may be executed on a host computer or that may be linked and executed in conjunction with other software and executed on a target computer.
1.2 "Software Source Code" shall mean copies of software programs in source code format, which may be used to create Executable Software.
1.3 "Software" shall refer collectively to Executable Software and Software Source Code.
1.4 "Documentation" shall mean a copy of documentation, as provided by ZXTECH together with the Software for use by the Licensee.
2. TERM OF AGREEMENT
2.1 This Agreement shall become effective up receipt of ZXPICO and shall remain in effect for an indefinite period of time, subject to the terms and conditions set forth below. In particular, the terms and conditions provide ZXTECH with the right to terminate portions of the Agreement upon Licensee's breach of the Agreement.
3. OWNERSHIP AND LICENSE GRANT
3.1 General: ZXTECH owns the copyrights, trade secrets and any other intellectual property rights that exist in ZXPICO and all copies thereof. No title or other rights in ZXPICO shall pass to the Licensee, except as expressly granted herein.
ZXPICO IS LICENSED, NOT SOLD, TO THE LICENSEE FOR USE ONLY UNDER THE TERMS OF THIS AGREEMENT. LICENSEE ACKNOWLEDGES THAT THE PRODUCT CONSISTS OF PROPRIETARY UNPUBLISHED WORK PRODUCTS OF ZXTECH, PROTECTED UNDER INTERNATIONAL COPYRIGHT AND TRADE SECRET LAWS.
3.2 Software Source Code: The Licensee may use Software Source Code only in conjunction with the use of ZXPICO. The Software Source Code or any derivative works thereof may only be compiled and linked with ZXPICO and only in accordance with the provisions for such use as described in Documentation or this Agreement.
LICENSEE ACKNOWLEDGES THAT THE SOFTWARE SOURCE CODE INCLUDES COPYRIGHTED AND PROPRIETARY INFORMATION OF ZXTECH, AND THAT MAKING SOFTWARE SOURCE CODE ACCESSIBLE TO OTHERS OUTSIDE THE SCOPE OF THIS AGREEMENT, BY THE NATURE OF SOURCE CODE, SEVERELY DAMAGES THE INTELLECTUAL PROPERTY RIGHTS OF ZXTECH, AND AGREES TO COMPENSATE ZXTECH FOR ALL DAMAGE RESULTING FROM SUCH BREACH THAT CAN REASONABLY BE SUBSTANTIATED BY ZXTECH. Licensee shall keep and protect the Software Source Code with at least the same degree of care as it does for its own proprietary source code and other intellectual property.
3.3 Backup Copies: Licensee may make backup copies of the Software and Documentation in machine readable form, only to be used in the event and to the extent that original copy of Software and Documentation received from ZXTECH fails to function or is lost, damaged or destroyed. Licensee warrants that it will not make copies of the Software and Documentation nor will it allow, authorize or assist others to copy any part or all of the Software or Documentation in any form without the prior written consent of ZXTECH. There may be no more copies than are necessary to form part of a reasonable backup plan for Licensee.
4. LICENSE RESTRICTIONS
4.1 Licensee may not remove, make emulations of, reverse engineer, decompile, or disassemble the Executable Software. Licensee is not allowed to derive the source or assembly code of files provided in executable or object formats. Licensee accepts that all information gained about the Software is the valuable intellectual property of ZXTECH and, as such, must be treated as confidential as described under the subsequent Confidentiality section. Licensee warrants that it will not sell, license, lease, rent, loan, lend, transmit, network, communicate or otherwise distribute or transfer the Software in any manner to any third party, whether on a permanent or temporary basis, except as explicitly provided for in this Agreement. Further, the Licensee warrants that it will not use or permit the use of the Software for the benefit of any entity other than the Licensee; make unauthorized copies of the Documentation; or make verbal or media translations of the Documentation. Licensee is also expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of the Executable Software for any purpose including correction of errors or any other type of maintenance.
5. CONFIDENTIALITY
5.1 Licensee agrees that all material and information relating to the Software is made available soley for use under, and in accordance with, this Agreement. Licensee has no right at any time during or after cancellation or termination of this Agreement to disclose such material or information relating to the Software, whether directly or indirectly, to any third party without the prior written consent of ZXTECH. Licensee shall hold harmless, defend and indemnify ZXTECH from and against any and all losses, costs, damages and expenses arising out of or in connection with the Licensee's failure to comply with the requirements of this Agreement.
5.2 Licensee's confidentiality obligations herein shall survive cancellation or termination of this Agreement, without regard to reason.
6. NO WARRANTY
6.1 As-Is: ZXPICO, as a product being provided without compensation to ZXTECH, is being provided on an "as-is" basis without a warranty of any kind.
6.2 ZXTECH does not warrant that the Software will meet Licensee's requirements or that the operation of the Software will be uninterrupted and error-free. Licensee is solely responsible for the selection of the Software to achieve its intended results or for the results to actually be obtained.
6.3 LICENSEE AGREES THAT IT WILL NOT RAISE ANY WARRANTY CLAIM BASED ON THE PERFORMANCE OR LACK OF PERFORMANCE OF THE SOFTWARE. ZXTECH SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENATIONS OR UNDERTAKINGS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRATIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT, OR FOR ANY OTHER WARRANTY OBLIGATION ON THE PART OF ZXTECH.
6.4 The provisions of this section will survive any expiration or termination of this Agreement.
7. INTELLECTUAL PROPERTY INFRINGEMENT
7.1 ZXTECH may, in its sole discretion, but is not obligated to, act on a third party claim that the Software infringes the intellectual property rights of such party, provided that: (a) the claim is based solely on the Software as it existed when it was provided to Licensee by ZXTECH, (b) the Licensee gives prompt notice of such claim to ZXTECH, and (c) the Licensee gives ZXTECH information, reasonable assistance and sole authority to defend or settle the claim. ZXTECH may, at its option, obtain the right for Licensee to continue using the infringing ZXTECH product, replace or modify the infringing product so that it becomes non-infringing, or if replacement or modification is not reasonably possible, terminate this license with respect to the infringing product.
7.2 ZXTECH will not act on any third party claim of infringement arising from post-delivery unauthorized use of the Software, non-ZXTECH modifications, or the combination with other products or devices that are not furnished by ZXTECH.
7.3 IN ANY EVENT, THE LIABILITY OF ZXTECH FOR INFRINGEMENT OF PATENTS AND COPYRIGHTS SHALL NEVER EXCEED THE LICENSING FEES PAID BY THE LICENSEE TO ZXTECH FOR ZXPICO.
8. LIMITATION OF LIABILITY
8.1 THE USE OF THE SOFTWARE AND ALL CONSEQUENCES ARISING THEREFROM IS THE SOLE RESPONSIBILITY OF THE LICENSEE. ZXTECH SHALL NOT BE LIABLE TO LICENSEE FOR ANY LOSS OR DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, BY OR IN CONNECTION WITH THE SOFTWARE, THE USE OF THE SOFTWARE OR OTHERWISE.
8.2 IN NO EVENT SHALL ZXTECH BE LIABLE TO LICENSEE UNDER THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER ANY LEGAL THEORY, SUCH AS LOSS OF DATA, USE OR PROFITS, BUSINESS INTERRUPTION OR DOWNTIME COSTS AND CAPITAL COSTS OR CLAIM OF THIRD PARTY, WHETHER ON ACCOUNT OF DEFECTS, PERFORMANCES, NON-PERFORMANCES, DELAYS, PERSONAL INJURIES, PROPERTY DAMAGES OR OTHERWISE, REGARDLESS OF WHETHER ZXTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR NOT.
8.3 IN ANY EVENT, THE LIABILITY OF ZXTECH SHALL NEVER EXCEED THE LICENSING FEES PAID BY THE LICENSEE TO ZXTECH FOR ZXPICO.
8.4. The provisions of this section shall survive the cancellation or termination of this Agreement.
9. SUPPORT AND UPDATE AGREEMENT
9.1 This Agreement does not grant Licensee any right whatsoever to any improvements, modifications, enhancements, upgrades or updates to the Software or any support services related to the Software. A separate agreement with ZXTECH would be required for such services. That notwithstanding, ZXTECH, in its sole discretion, may elect to provide such services to the Licensee. If it elects to do so, the providing of such services at any moment in time should not be construed as an obligation of ZXTECH to continue to do so and for any particular fee amount. The use of improvements, modifications, enhancements, updates and upgrades received by the Licensee, whether under a separate support agreement or not, shall be governed by the terms and conditions contained in this Agreement.
10.0 TERMINATION OF AGREEMENT
10.1 ZXTECH shall have the right to immediately terminate this Agreement if Licensee is in breach of any of its obligations under this Agreement, including, but not limited to, (a) use of the Software in any manner other than pursuant to the rights granted in Sections 3 and 4, or (b) breach of the Confidentiality provisions of this Agreement in Section 5.
10.2 Upon ZXTECH's termination of this Agreement, as set forth in this section, ZXTECH may, at its option, and in addition to any other rights hereunder, and in addition to any other remedies available to it under the law, in writiing require that the Licensee return or destroy all versions of the Software and the Documentation and any and all documentation relating thereto on any media and in any form in Licensee's possession. Licensee shall give a written confirmation to ZXTECH that all material related to the Software has been returned to ZXTECH or destroyed.
10.3 The provisions of this section shall survive the cancellation or termination of this Agreement.
11.0 EXPORT CONTROL REGULATIONS
11.1 The Software and Documentation is subject to export or import regulations in various countries, including the regulations of the United States Export Administration Act. Licensee hereby agrees that Licensee will not knowingly: (a) export or re-export, directly or indirectly, any product or technical data or any controlled products restricted by applicable national regulations, including Software received from ZXTECH under this Agreement, (b) disclose such technicla data for use in such countries, or (c) export or re-export, directly or indirectly, any direct product of such technical data or of such other controlled products, including software, to any destination to which such export or re-export is restricted or prohibited by US or non-US law, without first obtaining prior written consent from ZXTECH.
12.0 MISCELLANEOUS
12.1 This Agreement shall not assigned or transferred, in whole or in part, by either party without the prior written consent of the other party. This notwithstanding, ZXTECH shall be entitled to assign this Agreement, in whole or in part, to a ZXTECH company and ZXTECH may assign this Agreement without penalty or detriment to its rights under this Agreement, and without Licensee's prior written consent, in the event of a merger or similar reorganzation of sale of substantially all of its assets.
12.2 No laternation or amendment to this Agreement shall be valid unless such alternation or amendment is made in writing and signed by the parties hereto.
12.3 Any notice or other communication under this Agreement shall be made in writing either by hand or by telefax (confirmed by airmail) or by certified or registered airmail first-class postage prepaid to the parties at the addresses stated during the registration process (or other such address as may be amended by written notice).
12.4 This Agreement contains the entire understanding between the parties on its subject matter, and supercedes any other agreements or understandings, whether written or oral, which may exist or have existed between the parties on the subject matter hereof.
12.5 This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States. Any dispute concerning this Agreement or the interpretation or validity thereof, or any other dispute based thereon, shall be submitted to the courts within said jurisdiction.
12.6 The provision of this section shall survive the cancellation or termination of this Agreement.
--------------------------------------------------------
ZX Technologies, Inc.
3998-C Highway 290 East
Dripping Springs, TX 78620
+1-512-858-0973
www.zxtechnologies.com
April 09, 2010