This Developer License Agreement (“Agreement”) is a binding
contract between Xiamen SigmaStar Technology Ltd. (“SigmaStar”) and the individual or
type of Person intending to download, install or otherwise use Licensed Item (“Licensee”).
SIGMASTAR PROVIDES LICENSED ITEM SOLELY ON THE TERMS AND CONDITIONS SET
FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES
WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY DOWNLOADING,
INSTALLING OR OTHERWISE USING LICENSED ITEM, LICENSEE (A) ACCEPTS THIS
AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B)
REPRESENTS AND WARRANTS THAT: (I) IF AN INDIVIDUAL, LICENSEE IS 18 YEARS OF AGE
OR OLDER; AND (II) LICENSEE HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO
THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO
THE TERMS OF THIS AGREEMENT, SIGMASTAR WILL NOT AND DOES NOT GRANT ANY LICENSE
RELATING TO LICENSED ITEM TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD, INSTALL
OR USE LICENSED ITEM.
SIGMASTAR仅基于本协议之条件提供「授权标的」，SIGMASTAR提供「授权标的」并以「被授权人」同意及遵守本协议之规定为前提。「被授权人」按下如下”同意键”或下载、安装或或以任何其它方式使用「授权标的」之行为，视为「被授权人」：(A) 同意本协议之规定并同意本协议对「被授权人」具有法律拘束力；及(B)声明及保证：(I) 如「被授权人」为个人，「被授权人」已年满18岁；及 (II) 「被授权人」具有完整的权利、权力及授权以缔结本协议及使本协议对于「被授权人」具有拘束力。如「被授权人」不同意本协议之条件，SIGMASTAR将不会亦不同意授予「被授权人」任何关于「授权标的」之授权，「被授权人」不得下载、安装或以任何方式使用「授权标的」。
1.Definitions. For purposes of this Agreement, the following terms have the following
Property Rights” means any and all intellectual property or proprietary rights
throughout the world, including, but not limited to, all patent rights
(including patent applications and disclosures), registered and unregistered
copyrights (including rights in software, including in source code and object
code), registered and unregistered trademark rights, and trade secrets.「知识产权」系指世界各地之任何及全部知识财产或专有权利，包括但不限于专利权(包含专利申请权及披露权)、已登记及未登记之著作权(包含于软件源代码及目标码之权利)、已登记及未登记之商标权及营业秘密。
1.2 “Licensed Item” means the software,
documentation, and other material, and any updates, upgrades, enhancements,
improvements, and any other adaptations or modifications thereto which is
published by SigmaStar on COMAKE developer website (“Website”) and downloadable
by Licensee as a developer member of Website.
Party” means any Person other than Licensee or SigmaStar.
2. Grant of Right
2.1 Subject to the terms and conditions of
this Agreement, SigmaStar hereby grants to Licensee a non-exclusive,
non-transferable, non-sublicense license to use and modify (limited to Licensed Item which is
software and provided by SigmaStar in source code form, if any)
Licensed Item solely for the purpose of integrating SigmaStar’s product with
Licensee’s product(s) and for no other purpose.
2.2 In addition to the license granted by
SigmaStar in accordance with Section 2.1, Licensee is permitted to deploy and
distribute, in binary form only,
the software included in the Licensed Item as part of Licensee’s product which
incorporates SigmaStar’s product to Licensee’s customer who has concluded this
Agreement with SigmaStar.
2.3 Licensee may only
make necessary copies of Licensed Item as are reasonably necessary for its own
internal use and the license granted under this Agreement shall apply to all
such copies. In no event shall the
amount of said copies exceed reasonable copies. All copies of Licensed Item
shall contain all copyright or proprietary notices appearing on or in such
2.4 All rights granted to Licensee hereunder
are subject to Licensee’s continued compliance with the terms, conditions and
restrictions contained in this Agreement.
3. Third Party Item
Licensed Item may include software, documentation, content, data or
other materials that are owned by Third Party and that are provided to Licensee
on terms that are in addition to and/or different from those contained in this
Agreement (“Third-Party Licenses”). The license granted hereunder and
Licensee’s use of Licensed Item is subject to such Third Party Licenses, if
any. Licensee is bound by and shall comply with all Third-Party Licenses. Any
breach by Licensee of any Third-Party License is also a breach of this
Agreement. Licensee expressly acknowledges that it is Licensee’s sole
responsibility to obtain from any Third Party all proper licenses contained in
Licensed Item. SIGMASTAR HEREBY
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAWS, WITH RESPECT TO ANY
THIRD PARTY ITEM.
Licensed Item be accessed or used by Third Party or anyone other than
Licensee’s employees whose duties require such access or use; or
Licensed Item in violation of any domestic or foreign law, regulation or rule.
In addition, Licensee
shall not cause any portion of Licensed Item to be subject to the licensing
terms applicable to Open Source Software unless it is already an Open Source Software when
SigmaStar provides it as part of Licensed Item. For the purpose of this Agreement, “Open
Source Software” means any software or software component, module or package
that is subject to the license that requires the software (in whole or in part)
be disclosed or distributed in source code form, licensed for the making of
derivative works, freely redistributable or cannot be licensed under
proprietary terms, including, without limitation, the GNU’s General Public
License (GPL) or Lesser GPL (LGPL).
5.1 SigmaStar shall retain
any and all right, ownership and interest of Licensed Item (including any
modification thereto) and all Intellectual Property Rights arising out of or
relating to Licensed Item. Licensee
shall take no action that is inconsistent with the right, ownership and
interest of SigmaStar. No ownership,
interest or right therein is transferred to Licensee under this Agreement or by
way of SigmaStar’s performance of this Agreement.
5.2 To the extent that any
modifications are made, Licensee assigns, and will cause to assign, to
SigmaStar such modifications and all associated Intellectual Property Rights
thereto, subject to the license to Licensee in Section 2 (Grant of Right). In
addition, Licensee grants to SigmaStar the right and license to make, use,
sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit
any error reports, corrections and suggestions created or provided by Licensee
concerning Licensed Item or any modifications based thereon. Licensee shall,
perform such acts, and execute and deliver such instruments and documents, and
do all other things as may be reasonably necessary to evidence or perfect the
rights of SigmaStar set forth in this Section 5.
5.3 Licensee shall safeguard
all Licensed Item from infringement, misappropriation, theft, misuse, or
unauthorized access, promptly notify SigmaStar if Licensee becomes aware of any
of foregoing, and reasonably cooperate with SigmaStar in any legal action taken
by SigmaStar to enforce its Intellectual Property Rights.
information means any information disclosed by SigmaStar pursuant to this
Agreement, whether in oral, written, or other tangible or intangible form, that
is identified as proprietary or confidential at the time of disclosure or
provided under circumstances that reasonably indicate that the information is
proprietary or confidential (“Confidential Information”). For the avoidance of
doubt, Licensed Item shall be deemed as Confidential Information.
shall keep all Confidential Information in strict confidence and shall not
disclose such Confidential Information to any Third Party unless otherwise
provided herein. Without limiting the
foregoing, Licensee shall use at least the same degree of care which it uses to
prevent the disclosure of its own confidential information of like importance
to prevent the disclosure of Confidential Information, but in no event less
than reasonable degree of care.
otherwise set forth herein, Licensee may disclose Confidential Information only
to its employees who are required to have such information in order for
Licensee to carry out the purpose contemplated by this Agreement and who have
signed agreements with confidentiality terms at least as restrictive as
Licensee’s obligations under this Section 6. Licensee acknowledges that it shall be
responsible to SigmaStar for all breaches of this confidentiality obligation
under this Agreement caused by its employees. Licensee shall notify SigmaStar
of any unauthorized use or disclosure, whether actual or suspected.
acknowledges that due to the unique nature of the Confidential Information, any
breach of the restrictions contained in this Section 6 is a material
breach of this Agreement which would cause irreparable harm and SigmaStar would
not have an adequate remedy in money or damages in such an event. Any such breach shall entitle SigmaStar to obtain
injunctive relief in addition to all remedies that may be available in law, in
equity or otherwise.
DISCLAIMER AND LIMITATION OF LIABILITY
7.1 LICENSED ITEM IS PROVIDED ON AN “AS-IS” BASIS AND
WITH ALL FAULTS AND DEFECTS. SIGMASTAR,
ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE
LICENSORS, HEREBY, TO THE EXTENT PERMITTED BY APPLICABLE LAWS, EXPRESSLY
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
WITH RESPECT TO LICENSED ITEM, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT,
AND WARRANTIES THAT MAY ARISE OUF OF COURSE OF DEALING, COURSE OF PERFORMANCE,
USAGE OR TRADE PRACTICE. SIGMASTAR FURTHER EXPRESSLY DISCLAIMS ANY WARRANTIES
THAT THE OPERATION OF LICENSED ITEM WILL BE UNINTERRUPTED OR ERROR FREE.
LICENSEE WAIVES ANY CLAIM AGAINST SIGMASTAR FOR ANY LOSS, DAMAGE, COST OR
EXPENSE THAT LICENSEE MAY INCUR RELATED TO LICENSED ITEM.
7.2 IN NO EVENT SHALL
SIGMASTAR AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE
LICENSORS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOST OR
DAMAGED DATA, AND UNAUTHORIZED SYSTEM USE.
IN NO EVENT SHALL SIGMASTAR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS
OR THEIR RESPECTIVE LICENSORS’, AGGREGATIVE LIABILITY RELATED TO LICENSED ITEM
OR ANY OBLIGATION UNDRE THIS AGREEMENT, WHETHER ARISING OUF OF OR RELATED TO
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED
ONE-HUNDRED US DOLLARS (US$100).
Agreement and the license granted hereunder shall remain in effect unless terminated
as set forth herein.
Licensee breaches any of its obligations under this Agreement and fails to cure
such breach within ten (10) days upon SigmaStar’s notification, SigmaStar may
terminate this Agreement or any rights granted to Licensee upon written notice
to Licensee. Notwithstanding the above,
if the breach is not curable, SigmaStar may immediately terminate this
contained herein shall limit any other remedies that SigmaStar may have for the
default of Licensee under this Agreement nor relieve Licensee of any of its
obligations incurred prior to any termination of this Agreement.
the event Licensee’s developer membership at Website is terminated for any
cause, this Agreement shall be automatically terminated as of the termination
date of Licensee’s developer membership at Website.
the termination of this Agreement, any provisions of this Agreement which by
their terms are intended to survive the termination shall so survive and
continue in full force and effect.
shall indemnify and hold harmless SigmaStar, its affiliates, officers and
employees from and against any and all claims, allegations, actions,
proceeding, settlements, losses, damages, expenses or otherwise caused by, resulting from or arising in connection with
any use of Licensed Item beyond the scope of the licenses granted under this
Agreement or Licensee’s breach of this Agreement.
contained herein shall be construed as by express, implication, estoppels or
otherwise: (a) conferring any license or right to use any SigmaStar’s name,
trade name, trademark, service mark, symbol or any other identification or any
portion thereof; (b) obligating SigmaStar or any of its affiliates to furnish
any Person, including, without limitation, Licensee and its customers,
assistance or information of any kind whatsoever; or (c) conferring any license
or right under any patent, whether or not the exercise of any right herein
granted necessarily employs an invention of any existing or later issued patent
(any patent licenses and rights, if appropriate, will be the subject of a
separate agreement with SigmaStar).
of the parties shall act as, and shall be, independent contractors in all
aspects of this Agreement. Neither party will act or have authority to act as
an agent for the other party for any purpose whatsoever. Nothing in this
Agreement will be deemed to constitute or create a joint venture, partnership,
pooling arrangement, or other formal business entity or fiduciary relationship
between SigmaStar and Licensee.
in this Agreement shall preclude SigmaStar from seeking provisional remedies,
including but not limited to temporary restraining orders and preliminary
injunctions, from any court of competent jurisdiction, in order to protect its
this Agreement nor any of Licensee’s rights or obligations hereunder are
assignable or transferable by Licensee without the express written consent of
SigmaStar, whether voluntarily, involuntarily, by operation of law or
otherwise. SigmaStar may freely assign or otherwise transfer all or any of its
rights, or delegate or otherwise transfer all or any of its obligations, under
this Agreement without Licensee’s consent.
waiver of the terms and conditions of this Agreement, nor any failure of either
party to strictly enforce any term or condition of this Agreement on one or
more occasions shall be construed as a waiver of the same or of any other term
or condition of this Agreement on any other occasion.
Agreement constitutes the entire understanding and agreement between the
parties and supersedes any and all prior agreements, understandings and
communications, whether in writing or orally made, between the parties, with
respect to the subject matter hereof. In the event that any term or provision
contained herein is held invalid or unenforceable in any respect, the remainder
of the Agreement shall not be affected thereby and each term and provision
hereof shall be valid and enforced to the fullest extent allowed by applicable
party shall be liable for default of any obligation hereunder if such default
results from force majeure which includes, without limitation, governmental
acts or directives, strikes, acts of God, war, insurrection, riot or civil
commotion, flooding or water damage, explosions, or embargoes, whether of the
kind herein enumerated or otherwise, which are not within the reasonable
control of the party affected.