Z-Wave Development Kit License Agreement

Version 20180405

THIS Z-WAVE DEVELOPMENT KIT LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE LICENSED MATERIALS. INSTALLING, COPYING OR OTHERWISE USING THIS SOFTWARE, INDICATES YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT REGARDLESS OF WHETHER YOU CLICK THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OR IF YOU ARE NOT AUTHORIZED TO ACCEPT THE TERMS OF THIS LICENSE ON BEHALF OF YOUR EMPLOYER, DECLINE THE LICENSE TERMS AND DO NOT USE THE SOFTWARE OR DOCUMENTATION. THESE TERMS GOVERN YOUR CONTINUED USE OF THE LICENSED MATERIALS THAT YOU DOWNLOAD NOW OR IN THE FUTURE, INCLUDING SUCH ADDITIONAL SOFTWARE MADE AVAILABLE TO YOU THROUGH THE LICENSED MATERIALS YOU HAVE SELECTED, AND ALL UPDATES AND VERSIONS OF SUCH SOFTWARE.

1. DEVELOPMENT LICENSE GRANT.

1.1. License Grant - Precertification. No implied license is granted and all rights not expressly granted herein to Licensee are retained by Silicon Labs and its licensors. Subject to the terms and conditions of this Agreement, including payment in full of the applicable fees, Silicon Labs grants to Licensee a non-exclusive, non-transferable, royalty-free, fully paid-up, worldwide, limited license, as follows:

1.1.1.   Licensee may internally install and use the software portion of the Licensed Materials on personal computers located on Licensee’s premises solely to develop Applications for Licensee Products.

1.1.2.  Licensee may use the Silicon Labs IC and Licensed Materials for the purposes of incorporating the Silicon Labs IC and Licensed Materials into the Licensee Product and designing, developing, and testing the Licensee Product.

1.1.3.   Licensee may modify the sample source code included in the Licensed Materials and include all or part of such sample source code in an Application.

1.1.4.   Licensee may use and link the Z-Wave Protocols as needed for an Application; provided, however, that the Z-Wave Protocols may not be modified.

1.1.5.   Licensee may create up to 500 prototype Licensee Products (which include the Licensed Materials) to be manufactured, used and distributed only for evaluation and testing by Licensee and its customers. Licensee agrees that such prototype units may not be distributed commercially or for profit, but may be provided to customers for a nominal fee for evaluation and testing. All prototypes must be clearly marked as “prototypes’ or “non-Z-Wave certified samples.”

1.2. License Grant – After Z-Wave Certification. After Licensee has obtained Z-Wave Certification, for a Licensee Product, then, with respect only to that particular Licensee Product, Licensee may:

1.2.1.   exercise those rights described in Section 1.1;

1.2.2.   manufacture, or have manufactured by Authorized Manufacturer(s), Licensee Products in unlimited quantities; and

1.2.3.   distribute Licensee Products to customers in unlimited quantities.

1.3. License Restrictions. Except as expressly provided in this Agreement, Licensee shall not:

1.3.1.distribute Silicon Labs ICs except as an integral part of a Licensee Product;

1.3.2.sublicense, transfer, distribute or otherwise disclose Licensed Materials, or any portion of it, or any Silicon Labs ICs, to any third party;

1.3.3. copy or use Licensed Materials for any purpose except only as strictly necessary for the normal operation and authorized use of the Licensed Materials;

1.3.4.alter, modify, translate, decompile, disassemble or otherwise reverse engineer any portion of the Licensed Materials provided in object code;

1.3.5. attempt to derive the source code of any portion of the Licensed Materials that has not been otherwise provided to Licensee in source code;

1.3.6. prepare derivative works of the Licensed Materials;

1.3.7. use or display the Z-Wave Trademark;

1.3.8.make any claim of certification or compliance with Z-Wave with or without the use of the Z-Wave Trademark; or

1.3.9.use, or permit any use of, the Licensed Materials to develop an Application that would commit, or facilitate the commission of, any crime or other illegal or tortious act.
 

2. Z-WAVE CERTIFICATION.

2.1. Licensee shall not manufacture or distribute more than 500 Licensee Products without first obtaining Z-Wave Certification for such Licensee Product. Z-Wave Certification of one Licensee Product does not cover any other Licensee Product; each License Product must obtain its own Z-Wave Certification. THIS SECTION IS A MATERIAL TERM OF THIS AGREEMENT, AND BREACH OF THIS PROVISION SHALL BE CAUSE FOR IMMEDIATE TERMINATION OF THIS AGREEMENT AND THE LICENSES contained herein.

2.2. Notwithstanding Z-Wave Certification, Silicon Labs is not responsible for the interoperability of Licensee Products.
 

3. TRADEMARK LICENSE.

3.1. Subject to first obtaining Z-Wave Certification for each respective Licensee Product, Silicon Labs hereby grants to Licensee a limited, non-exclusive, non-transferable, royalty-free right and license to use the Z-Wave Trademark solely for use by Licensee on the Z-Wave Certified Licensee Products and on promotional and marketing materials for the same. Silicon Labs shall have the right to approve the form and manner of use of the Z-Wave Trademark. When using the Z-Wave Trademark, Licensee shall indicate Silicon Labs’ ownership of the Z-Wave Trademark. Silicon Labs will provide to Licensee specifications and requirements for the exact use of the Z-Wave Trademark and Licensee agrees to meticulously follow all specifications and requirements of Silicon Labs for the Z-Wave Trademark. All use by Licensee of the Z-Wave Trademark shall inure to the exclusive benefit of Silicon Labs. Except as expressly authorized by this Section 3, Licensee will not make any use of Silicon Labs’ trademarks, service marks or trade names. Licensee agrees to affix its own trademark(s) to the Licensee Products in such a manner and physical location that there is no confusion between the Z-Wave Trademark and Licensee’s mark and the Z-Wave Trademark is not adversely affected.

3.2. Licensee acknowledges and agrees that: (i) it will not have or acquire any right in or to the Z-Wave Trademark; (ii) Silicon Labs owns the exclusive right, title and interest in and to the Z-Wave Trademark; and (iii) Licensee will not, directly or indirectly, in any country or location, dispute the ownership of the Z-Wave Trademark. Licensee agrees that it will not adopt, use or register as a trademark, service mark, trade name, business name, corporate name or any part thereof, any word or symbol or combination thereof that is identical or confusingly similar to the Z-Wave Trademark. Licensee shall promptly notify Silicon Labs of any infringement or potential infringement, imitation or misuse of any Z-Wave Trademark that comes to Licensee’s attention, and shall assist Silicon Labs, at Silicon Labs’ request, in any infringement action by Silicon Labs to enforce Silicon Labs’ rights.
 

4. OWNERSHIP.

4.1. Silicon Labs Intellectual Property. As between the parties, Silicon Labs (and its licensors) retains all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Licensed Materials. Silicon Labs shall own all software (including modifications and documentation) created, conceived, prepared, made, discovered or produced by Licensee that are derived from or based upon the Licensed Materials. Licensee agrees that it will promptly disclose to Silicon Labs detailed information about all modifications and improvements it makes, whether alone or together with Silicon Labs, to the Licensed Materials, and provide copies of such modifications and improvements to Silicon Labs. Licensee agrees that all such modifications and improvements shall be owned by Silicon Labs and shall be deemed included in the Licensed Materials licensed to Licensee hereunder. To effectuate such ownership, Licensee hereby assigns, and agrees to assign, to Silicon Labs all right, title and interest in such modifications and improvements to the Licensed Materials, including all related Intellectual Property Rights. Notwithstanding the foregoing, Licensee undertakes to and covenants with Silicon Labs that it will not commence or threaten any lawsuit or other proceedings against Silicon Labs or its Affiliates, or any of their respective licensees or customers, in any jurisdiction, where such proceedings allege infringement of said party’s Intellectual Property Rights by any modifications made by Licensee. Licensee shall include corresponding restrictions in its agreements with its Affiliates, product developers, authorized purchasers, and licensees to prohibit such infringement claims against Silicon Labs.

4.2. Licensee Product and Application. Except to the extent of any incorporated component of the Z-Wave development kit and/or Z-Wave Technology, the Application and Licensee Product are owned by Licensee. This Agreement does not transfer or assign to Silicon Labs any Intellectual Property Right of Licensee in or to the Application or Licensee Product or any part thereof.

4.3. Reservation of Rights. All rights of either Party not expressly granted in this Agreement are reserved, and no additional rights or licenses are granted under Intellectual Property Rights of either Party by implication or estoppels or otherwise.
 

5. DELIVERY

Subject to the terms and conditions of this Agreement, delivery of the Licensed Materials to Licensee will take place as follows: If Licensee purchases the license to Licensed Materials from Silicon Labs, then Silicon Labs will be responsible for delivering the tangible portions of the Licensed Materials to Licensee. If Licensee purchases the license to the Licensed Materials from an Authorized Distributor, then such Authorized Distributor will be responsible for delivering the tangible portions of the Licensed Materials to Licensee. In either case, the software portions of the Z-Wave development kit will be licensed and delivered to Licensee only by Silicon Labs, in electronic format, by making them available to Licensee for download from Silicon Labs’ technical support website.
 

6. FEES AND PAYMENT.

Licensee shall pay to Silicon Labs or Authorized Distributor, as applicable, all license fees associated with the Licensed Materials prior to downloading any of the Licensed Materials.
 

7. TAXES.

The fees payable hereunder do not include, and Licensee will pay or reimburse Silicon Labs for, any sales, use, value added or other taxes based on or measured by amounts payable to Silicon Labs hereunder (excluding only taxes based on Silicon Labs’ net income) or any export, import or other governmental charges and any interest or penalties assessed on any of the foregoing.
 

8. UPDATES.

Silicon Labs reserves the right to make changes or updates to the Licensed Materials (such as technical configurations, upgrades, bug fixes, application features, etc.) during the term of this Agreement to reflect changes in technology and/or industry practices. Licensee shall accept all such changes or updates to the Licensed Materials.
 

9. SUPPORT.

Silicon Labs will, at no further charge to Licensee, provide basic training and development support in connection with Licensee’s use of the Licensed Materials, to such extent and in such manner (typically by phone and/or email) as Silicon Labs, at its sole discretion, determines to be reasonable.
 

10. CONFIDENTIALITY.

Licensee shall treat Silicon Labs’ Confidential Information with the same standard of care that Licensee uses to safeguard its own valuable confidential information of like nature from unauthorized access, use, disclosure or dissemination, but not with less than reasonable care. Licensee shall use Confidential Information including its tangible embodiments only in accordance with the provisions of this Agreement. Licensee may provide the Confidential Information to its employees only on a need to know basis. All employees of Licensee who receive Confidential Information of Silicon Labs must be bound by customary confidentiality obligations. Notwithstanding the foregoing, the Licensee may use or disclose Confidential Information if and only to the extent: (i) it is required to do so by law provided that the receiving party gives the disclosing party sufficient notice to enable it to seek an order limiting or precluding such disclosure; or (ii) the disclosing party gives its prior written authorization to do so which is signed by an officer of the disclosing party. Each party agrees to keep confidential and not to disclose the terms and conditions of this Agreement to any third party other than: (i) in confidence to its Affiliates, actual or potential investors, banks, lawyers, accountants and other professional advisors, and (ii) in connection with the enforcement of its rights under this Agreement. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” SILICON LABS DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
 

11. WARRANTIES; DISCLAIMER OF WARRANTY.

LICENSED MATERIALS ARE PROVIDED TO LICENSEE "AS IS" AND "WITH ALL FAULTS", WITHOUT WARRANTY OF ANY KIND FROM SILICON LABS. LICENSEE ASSUMES ALL RISKS THAT LICENSED MATERIALS ARE SUITABLE OR ACCURATE FOR LICENSEE’S NEEDS AND LICENSEE’S USE OF THE LICENSED MATERIALS IS AT LICENSEE’S OWN DISCRETION AND RISK. SILICON LABS DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES FOR LICENSED MATERIALS INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT.
 

12. LIMITATION OF LIABILITY.

NEITHER SILICON LABS NOR ITS AFFILIATES OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), ARISING OUT OF THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, OR LICENSEE’S USE OF OR INABILITY TO USE THE SILICON LABS PROGRAM AND/OR CONFIDENTIAL INFORMATION, EVEN IF SILICON LABS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR OTHERWISE SHOULD KNOW ABOUT THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF SILICON LABS, ITS AFFILIATES AND ITS SUPPLIERS, AND LICENSEE’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO SILICON LABS HEREUNDER OR U.S. $100.00 WHICHEVER IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
 

13. HIGH RISK ACTIVITIES.

Licensed Materials are not fault-tolerant and are not designed, manufactured or intended for use in FDA Class III or other devices for which FDA premarket approval is required, implantable devices, direct life support machines in which the failure of the Licensed Materials could lead directly to death, personal injury, or severe physical damage, automotive applications for which IATF 16494 qualification is required, or military or aerospace applications that require MIL-SPEC specifications ("High Risk Activities"). Silicon Labs disclaims any express or implied warranty of fitness for use of the Licensed Materials in High Risk Activities. Licensee agrees to defend and indemnify Silicon Labs for all third-party claims and for all damages, costs and fees, including Silicon Labs’ attorneys’ fees, arising from any such use of the Licensed Materials in High Risk Activities.
 

14. TERM; TERMINATION.

14.1. Term. This Agreement shall commence on the Effective Date and shall continue indefinitely unless otherwise terminated as provided in this section.

14.2. Termination. Either party may terminate this Agreement at any time immediately upon written notice to the other party if the other party is in material breach of any provision of this Agreement or if such breach is capable of being cured and remains uncured for at least 30 days following written notice of such breach demanding its cure. Without prejudice to any other rights to which it is entitled, Silicon Labs may terminate this Agreement immediately if Licensee: (i) ceases the development, commercialization and/or support of Licensee Product and/or Licensee Application; (ii) makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes subject to the supervision of a bankruptcy tribunal; and/or (iii) has an order made against it, or passes a resolution, for its winding-up or has a lienholder take possession or has a receiver or similar officer appointed over all or substantially all of its property or assets.

14.3. Effect of Termination. Upon termination of this Agreement for whatever reason, Licensee shall promptly cease using the Licensed Materials and return the original to Silicon Labs and destroy all copies, partial or complete, of the Licensed Materials. Further, Licensee shall promptly cease manufacturing or distributing Licensee Products that incorporate the Licensed Materials. At Silicon Labs’ request, Licensee shall certify to Silicon Labs in writing, signed by an officer of Licensee, that the Licensed Materials, and all copies thereof, including partial copies, have been either returned to Silicon Labs or destroyed and that no copy of the Licensed Materials remains in Licensee’s possession or under its control. Termination of this Agreement shall not affect Licensee Products that have been distributed to end users prior to the effective termination date.

14.4. Survival. Sections 4, 10, 12, 13, 14, 16 and 21 shall survive any expiration or termination of this Agreement.
 

15. EXPORT.

LICENSEE ACKNOWLEDGES THAT THE LICENSED TECHNOLOGY INCLUDES ENCRYPTION SUBJECT TO UNITED STATES LAWS AND REGULATIONS FOR EXPORT AND REEXPORT PURPOSES. LICENSEE MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE LICENSED MATERIALS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS, AND END USE. LICENSEE AGREES THAT IT WILL NOT EXPORT, RE-EXPORT OR TRANSFER THE LICENSED MATERIALS, MODIFICATIONS, CONFIDENTIAL INFORMATION OR ANY PRODUCTS DEVELOPED WITH OR UTILIZING THE LICENSED MATERIALS, MODIFICATIONS OR CONFIDENTIAL INFORMATION, IN VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS OF THE UNITED STATES OR THE COUNTRY WHERE THE LICENSED MATERIALS OR CONFIDENTIAL INFORMATION WERE OBTAINED. LICENSEE IS RESPONSIBLE FOR OBTAINING ANY LICENSES OR AUTHORIZATIONS REQUIRED TO EXPORT, RE- EXPORT, TRANSFER OR IMPORT ANYTHING DEVELOPED HEREUNDER.
 

16. GOVERNING LAW AND JURISDICTION.

This Agreement is governed by the substantive and procedural laws of the State of Texas, excluding its conflict of law rules. Silicon Labs and Licensee agree to submit to the exclusive jurisdiction of, and venue in, the courts in Travis County, Texas in any dispute arising out of or relating to this Agreement. The parties exclude in its application the United Nations Convention on Contracts for the International Sale of Goods.
 

17. NOTICE.

All notices of termination or breach must be in English, in writing given by recognized delivery service or personal delivery addressed to the other party’s Legal Department. The address for notices to Silicon Labs’ Legal Department is 400 W. Cesar Chavez, Austin, TX 78701. The address for Licensee is the address Licensee provided to Silicon Labs upon Licensee registering on Silicon Labs’ website. Notice will be treated as given on receipt, as verified by written receipt. Either party may change the address for notice hereunder by providing the other party with 10 days written notice thereof.
 

18. ASSIGNMENT.

This Agreement may not be assigned or transferred by Licensee without the prior written consent of Silicon Labs. All other assignment by Licensee is void. As used in this Agreement, the following shall be deemed an assignment or transfer: (i) any dissolution, merger, consolidation, or other reorganization of or affecting Licensee, whether or not Licensee is the surviving corporate entity; and (ii) the sale or transfer, by one or more transactions, of stock possessing more than 50% of the total combined voting power of all classes of Licensee’s capital stock issued, outstanding and entitled to vote for the election of its directors. Without prior notice to or the consent of Licensee, Silicon Labs may assign this Agreement to any Affiliate or to any acquirer pursuant to a sale of assets, merger or acquisition so long as the acquirer agrees to comply with the terms of this Agreement. All of the terms and provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
 

19. DRAFTING.

This Agreement was drafted in the English language. If this Agreement is translated into any other language, the English language version shall take precedence over any translation. This Agreement shall be deemed to have been jointly drafted and negotiated between parties of equal bargaining strength, and shall not be construed for or against either party.
 

20. SEVERABILITY.

In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and a valid, legal and enforceable provision of similar intent and effect shall be substituted for such invalid, illegal or unenforceable provision. A waiver of any default hereunder or of any of the terms or conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
 

21. ENTIRE AGREEMENT; AMENDMENT.

This Agreement constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties relating to such subject matter. No modifications to this Agreement shall be enforceable except when in writing and signed by an authorized signatory of each party.
 

22. DEFINITIONS.

As used in this Agreement, the following capitalized terms are defined as follows:

22.1. “Affiliate” means any company that controls, is controlled by, or is under common control with a party to this Agreement, where “control” means ownership of a majority of the voting interests, the ability to elect a majority of the board, or the ability to otherwise control the management of a party.

22.2. “Application” means a software application that Licensee develops for Licensee Products which use Silicon Labs’ Z-Wave Technology and that is either included in a Silicon Labs IC or in a system containing a Silicon Labs IC, and any Licensee updates and improvements to such software application.

22.3. “Authorized Distributor” means a distributor of Silicon Labs products that is authorized by Silicon Labs to distribute Z-Wave development kit and Silicon Labs ICs to customers in the territory where Licensee is located.

22.4. “Authorized Manufacturer” means a third party that has executed an agreement with Licensee to manufacture Licensee Products and such agreement contains provisions protecting Silicon Labs’ intellectual property consistent with the terms of this Agreement.

22.5. “Confidential Information” means any non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, facilities, technical data, licensed materials, and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation or which the recipient has reason to know is treated as confidential by the discloser.

22.6. “Intellectual Property Rights” means all current and future patent rights, copyrights, moral rights, rights of priority, trade secrets, mask work rights, topography rights, know how, industrial design rights, trademarks (including service marks), trade dress and other similar intangible rights, whether registered or unregistered, which may exist anywhere in the world, and all applications and registrations with respect to any of the foregoing

22.7. “Licensee Product” means the device, system, subsystem or module for which Licensee develops an Application and that contains a Silicon Labs IC containing the Z-Wave Protocol and such Application.

22.8. “Licensed Materials” means the set of digital files including software, sample source code, application programming interface(s) (APIs), tools, libraries and data, hardware, documentation and other materials, whether tangible or intangible, and in whatever form or medium, identified by Silicon Labs as the Z-Wave development kit and any Silicon Labs-issued updates and improvements thereto. The Z-Wave development kit includes the Z-Wave Technology.

22.9. “Silicon Labs” means Silicon Laboratories Inc., a Delaware corporation located at 400 W. Cesar Chavez, Austin, TX 78701 if you are physically located within the United States. If you are physically located outside of the United States, Silicon Labs means Silicon Laboratories International Pte Ltd., a Singapore corporation located at No. 18 Tai Seng Street, #05-01, 18 Tai Seng, Singapore 539775.

22.10. “Silicon Labs IC” means a standard Silicon Labs branded integrated circuit or module which contains the Z-Wave Protocol.

22.11. “Z-Wave Certification” means Licensee Product has passed the Technical Certification component in order to ensure that the Licensee Product will be interoperable within the Z-Wave network at market launch and that the packaging and materials for the Licensee Product have passed the Marketing Certification component in order to ensure that the Licensee is following the Z-Wave guidelines related to proper logo use and placement.

22.12. “Z-Wave Protocol” means the Z-Wave communication protocol.

22.13. “Z-Wave Technology” means the Z-Wave radio frequency based digital communications technology, including node transceiver hardware and the Z-Wave Protocol software stack, data and API.

22.14. “Z-Wave Trademark” means the Z-Wave trademark and logo, specifications of which will be supplied by Silicon Labs after Licensee’s Product has passed the Z-Wave Certification Program.

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