INVENSENSE, INC. (“LICENSOR”) SOFTWARE LICENSE AGREEMENT (“Agreement”)

BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE ENCLOSED SOFTWARE AND OTHER AVAILABLE MATERIALS (“LICENSED MATERIALS”), YOU (“LICENSEE”) AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT.  IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITION OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE ENCLOSED SOFTWARE AND MATERIALS.

The Licensed Materials may include open source and proprietary software in both source code ("Source Code") and object code ("Object Code") versions, documentation and other materials.  Except as expressly indicated herein, all terms and conditions of this Agreement apply to all of the Licensed Materials.  In the event that any file contained within the Licensed Materials incorporates a different software license, such other license shall apply to such file. 

Except as expressly set forth herein, LICENSOR owns all of the Licensed Materials and makes them available to Licensee only under the terms and conditions set forth in this Agreement.

1. License:  Subject to the terms of this Agreement, LICENSOR hereby grants to Licensee a royalty-free, non-exclusive license to possess and to use the Licensed Materials in a secure location in accordance with the applicable terms herein.  Licensee may make back-up copies and install and use multiple copies of the Licensed Materials on a shared computer or concurrently on different computers, solely for Licensee’s use within Licensee’s Enterprise. “Enterprise” shall mean individual use by Licensee or any legal entity (such as a corporation or university) and the subsidiaries it owns by more than 50 percent.  The following terms apply to the specified type of Licensed Material:

1.1 Source Code:  Licensee shall have the right to use, copy, modify and prepare and have prepared derivative works of the Source Code for internal development and testing purposes only.  Licensee shall own any modification it makes directly to the Source Code that optimizes quality or performance with Licensee’s product ("Modification(s)") subject to LICENSOR’s ownership of the underlying Source Code and all intellectual property rights therein. 

1.2 Object Code:  Licensee may distribute the Object Code (in object code form only) and compiled Source Code (in object code form only) with Modifications solely for execution or operation with applicable LICENSOR products for which Source Code and Object Code was designed and as incorporated in Licensee’s software products. Licensee agrees not to disassemble, decompile or 
reverse engineer the Object Code.

2. Notices:  Licensee agrees to comply with and reproduce any and all copyright and other attribution notices/instructions of LICENSOR as included in the Licensed Materials in connection with Licensee’s distribution rights pursuant to the Agreement.

3. Subcontractors:  Licensee may engage subcontractors to exercise Licensee’s rights hereunder. Licensee is responsible to ensure that Licensee subcontractors comply with the terms and conditions of this Agreement.  Any act by a subcontractor that would be a breach of this Agreement by Licensee if Licensee performed the act will be deemed a breach of this Agreement by Licensee.

4. License Grant Back: Licensee hereby grants to LICENSOR and its Affiliates an exclusive, worldwide, irrevocable, perpetual, sublicenseable (through multiple tiers of sublicensees), royalty-free and fully paid-up right and license to the Modification(s) (in object code form) created by or on behalf of Licensee so that LICENSOR may copy, modify, create derivatives works thereof, to use, have used, import, make, have made, sell, offer to sell, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors) such derivative work(s) on a stand-alone basis or as incorporated into the Licensed Materials or other related technologies.  For the sake of clarity, LICENSOR is not prohibited or otherwise restricted from independently developing new features or functionality with respect to the Licensed Materials.

5. No Other License: No rights or licenses with respect to any proprietary information or patent, copyright, trade secret or other intellectual property right owned or controlled by LICENSOR are granted by LICENSOR to Licensee under this Agreement, expressly or by implication, except as expressly provided in this Agreement.  

6. Intellectual Property Ownership: Except as expressly licensed to Licensee under this Agreement, LICENSOR reserves all right, title and interest, including but not limited to all intellectual property rights, in and to the Licensed Materials and any derivative work(s) made thereto. 

7. Term of Agreement:  This Agreement is effective until (i) automatically terminated if Licensee fails to comply with any of the terms and conditions of this Agreement; or (ii) terminated by LICENSOR.  LICENSOR may terminate this Agreement (and with it, all of Licensee’s right to the Licensed Materials) immediately upon written notice (which may include email) to Licensee, with or without cause; provided however, that sublicenses of Derivatives, to the extent validly granted to its customers prior to termination of this Agreement, shall survive such termination.  

8. Confidential Information. “Confidential Information” means (i) the Licensed Materials; (ii) the structure, sequence and organization of the Licensed Materials and the concepts, methods of operations and ideas disclosed therein; and (iii) any trade secrets of LICENSOR or its affiliates or its or their suppliers relating to the Licensed Materials. Licensee will not disclose any Confidential Information to any third party (except subcontractors, as permitted herein) or use Confidential Information except as expressly permitted in this Agreement.  Licensee agrees to take all reasonable measures to protect Confidential Information and prevent its unauthorized disclosure, including measures at least as stringent as those measures Licensee takes to protect Licensee’s own most sensitive confidential information.  Licensee agrees to restrict access to Confidential Information to Licensee employees and subcontractors who are under obligations to protect Confidential Information in accordance with this Agreement and who have a “need to know” the Confidential Information to exercise Licensee license rights in this Agreement.  All Confidential Information, and any documents and other tangible objects containing or representing Confidential Information, and all copies of Confidential Information, are and will remain the exclusive property of LICENSOR.

9. Defensive Suspension: If Licensee commences or participates in any legal proceeding against LICENSOR, then LICENSOR may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this Agreement during the pendency of such legal proceedings. 

10. No Support:  LICENSOR has no obligation to support or to continue providing or updating any of the Licensed Materials.

11. No Warranty:  THE LICENSED MATERIALS PROVIDED BY LICENSOR TO LICENSEE HEREUNDER ARE PROVIDED "AS IS."  LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

12. Limitation of Liability: LICENSOR SHALL NOT BE LIABLE TO LICENSEE, LICENSEE’S CUSTOMERS, OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH OR UNDER LICENSEE FOR ANY LOSS OF PROFITS, INCOME, SAVINGS, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, DIRECT OR INDIRECT DAMAGES (WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH OR UNDER LICENSEE EXCEED THE AMOUNT OF MONEY ACTUALLY PAID BY LICENSEE TO LICENSOR FOR THE LICENSED MATERIALS.

13. Applicable Law and Jurisdiction: This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California. The state and/or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

14. Feedback: Licensee may, but is not obligated to, provide to LICENSOR any suggestions, comments and feedback regarding the Licensed Materials that are delivered by LICENSOR to Licensee under this Agreement (collectively, “Licensee Feedback”).  LICENSOR may use and include any Licensee Feedback that Licensee voluntarily provides to improve the Licensed Materials or other related LICENSOR technologies.  Accordingly, if Licensee provides Licensee Feedback, Licensee grants LICENSOR and its licensees a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license grant to freely use, have used, sell, modify, reproduce, transmit, license, sublicense (through multiple tiers of sublicensees), distribute (through multiple tiers of distributors), and otherwise commercialize the Licensee Feedback in the Licensed Materials or other related technologies.   

15. RESTRICTED RIGHTS NOTICE: Licensed Materials has been developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in the license agreement under which Licensed Materials was obtained pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable.

16. Miscellaneous: If any provision of this Agreement is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. This Agreement is solely between LICENSOR and Licensee.  There are no third party beneficiaries, express or implied, to this Agreement. This Agreement may only be modified in writing signed by an authorized officer of LICENSOR.  Licensee agrees that it will not ship, transfer or export the Licensed Materials into any country, or use the Licensed Materials in any manner, prohibited by the United States Bureau of Industry and Security or any export laws, restrictions or regulations. This Agreement, and Licensee’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Licensee without LICENSOR’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.   The terms of this Agreement shall be binding upon assignees.
