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Software Developer’s Kit and License Agreement

IMPORTANT – READ CAREFULLY: This Software Developer's Kit and License Agreement (“Agreement”) is a legal agreement between TIMEX CORPORATION (“LICENSOR”) and you (either an individual or entity “LICENSEE”). By clicking the “Accept” button, LICENSOR acknowledges that it has read and understood this Agreement and LICENSEE agrees to be bound by its terms and conditions.

WHEREAS, LICENSOR has developed a system, which is currently in use in a product known as the Data Link USB watch, for transmitting data, programs and other digitally encoded information (the “Data Link USB System”); and

WHEREAS, LICENSOR has created a Software Developer's Kit (the “SDK”) to enable third parties to develop software that permits the transmission of data via the Data Link USB System, which SDK includes a packager function for formatting data to be transmitted and other software; and

WHEREAS, LICENSOR holds certain intellectual property rights in the SDK and currently maintains the SDK as confidential information; and

WHEREAS, LICENSEE desires to obtain a non-exclusive license from LICENSOR to use the SDK in connection with Products, as defined below,

NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein and other good and valuable consideration, the parties agree as follows:

  1. PRODUCTS. “Products” means software developed by or on behalf of LICENSEE that utilizes the SDK.
  2. GRANT OF RIGHTS. LICENSEE is hereby authorized to use, copy, and format the SDK in LICENSEE's development of Products subject to the terms and conditions of this Agreement. Products must meet or exceed LICENSOR's quality control requirements. Notwithstanding the foregoing, LICENSOR does not grant LICENSEE any right or license to use the DATA LINK trademark (the “Mark”) or any other trademarks.
  3. TECHNICAL SUPPORT. LICENSEE shall be responsible for all customer support for Products.
  4. OWNERSHIP OF DATA LINK SYSTEM, SDK AND TRADEMARKS. LICENSEE hereby acknowledges LICENSOR's ownership of the Data Link USB System, the SDK and the Mark. LICENSEE shall not make any reference to the Mark in any manner that derogates from LICENSOR's rights in the Mark, and will take no action that will interfere with or diminish LICENSOR's rights in the Data Link USB System, the SDK, or the Mark, either during the term of this Agreement or afterwards. LICENSEE agrees not to adopt, use or register any corporate name, trade name, trademark, service mark or certification mark, or other designation similar to, or containing in whole or in part, the Mark. LICENSEE agrees that any use of the Mark by LICENSEE, whether authorized or unauthorized, shall inure to the benefit of LICENSOR. LICENSEE may not suggest or imply that LICENSOR in any way endorses or sponsors Products by LICENSOR.
  5. QUALITY CONTROL. LICENSEE acknowledges that the maintenance of the high quality of Products is an essential element of the license granted herein. Upon request by LICENSOR, LICENSEE hereby agrees to provide representative samples of each Product to LICENSOR for LICENSOR's approval.
  6. MARKETING OF PRODUCTS. LICENSEE may in marketing Products that use the Data Link USB system make fair use and state that the LICENSEE's application is “for use with Timex Data Link USB watches” or “with the Timex Data Link USB system”. Packaging, advertising and collateral material may not suggest or imply that LICENSOR or its affiliates in any way endorses the Product. Advertising and collateral materials for products incorporating the Data Link USB system may not disparage LICENSOR or its affiliates. Advertising materials should not be offensive, sexually suggestive, or misleading, nor should anything be said that is inconsistent with LICENSOR's image and reputation. Advertising is permitted in such places as advertising typically appears for the Products. All references to the Data Link USB system and references to the functions of the technology should use the phrase “the Data Link USB system.” Other phrases or names are not acceptable. Upon request by LICENSOR, LICENSEE will provide samples of all advertising, packaging and collateral material to LICENSOR. In the event that, upon review of such samples, LICENSOR determines that any such material or the markings on a Product do not conform to LICENSOR standards and so notifies LICENSEE, LICENSEE will take all reasonable steps to correct or modify such materials before they are further disseminated and, in the event that LICENSOR deems it necessary to protect the Mark, to issue corrective advertising or other materials in the same channels in which such non-conforming material or Products were disseminated. LICENSEE will affix on all Products and on all packaging, advertising and collateral material therefor such legends, markings and notices as are required by LICENSOR or by law. LICENSEE shall strictly comply with any trademark, patent and copyright notice requirements on Products and on packaging, advertising and collateral material. All advertising and promotion of Products must be consistent with the high quality, image and standards of LICENSOR.
  7. LICENSEE REPRESENTATIONS AND WARRANTIES. LICENSEE represents and warrants that it will comply with all applicable laws, rules, and regulations and will not violate or infringe any right of any third party.
  8. LICENSEE INDEMNIFICATION. LICENSEE agrees to indemnify, defend and hold LICENSOR harmless, at LICENSOR's request, from and against any and all claims, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or related to Products in any manner, including user claims regarding Products' incompatibility with devices capable of receiving data via the Data Link USB System.
  9. DISCLAIMER. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES. EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE DATA LINK USB SYSTEM, THE SDK OR THE MARK, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  10. CONSEQUENTIAL AND OTHER DAMAGES. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS PROFITS) ARISING FROM OR RELATED TO LICENSEE'S MARKETING, DISTRIBUTION, OR ANY USE OF THE DATA LINK USB SYSTEM OR THE SDK, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, INFRINGEMENT OF INTELLECTUAL PROPERTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES FOR LICENSEE'S USE OF THE DATA LINK USB SYSTEM OR THE SDK IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
  11. INFRINGEMENT: LICENSEE shall promptly notify LICENSOR of any suspected infringement of or challenge to LICENSOR's rights in the SDK and the Data Link USB System.
  12. CONFIDENTIALITY: LICENSEE acknowledges that the SDK is confidential. LICENSEE shall use the SDK only as set forth herein and shall not disclose the SDK to any other person or entity.
  13. TERM
    • This Agreement shall commence on the date of click acceptance by LICENSEE and either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days prior written notice to the other party. For purposes of this provision, LICENSOR posting of notice of termination on the timex.com website or other website shall constitute adequate notice of termination of this Agreement.
    • The license to use, copy, format and distribute the SDK in Products developed and distributed by or on behalf of LICENSEE prior to termination or expiration of this Agreement shall survive termination or expiration of this Agreement provided such software meets LICENSOR's quality control standards.
  14. INTERPRETATION: This Agreement shall be interpreted to give LICENSOR maximum control of the Data Link USB System, the SDK and the Mark. Any uncertainty or ambiguity shall not be construed for or against a party based on attribution of drafting to either party. The headings in this Agreement are for convenience only and shall not be used for interpretation.
  15. GOVERNING LAW: All questions concerning this Agreement, the rights and obligations of the parties, its enforcement, and its validity, effect, interpretation and construction which are governed by state law shall be determined under the laws of the State of Connecticut, excluding its choice of law provisions. All federal or foreign law questions shall be governed by federal law or the law of the applicable foreign jurisdiction. With respect to any claim relating to this Agreement, LICENSEE (a) irrevocably submits to the non- exclusive jurisdiction of the courts of the State of Connecticut and the United States District Court for the District of Connecticut, and to the jurisdiction of all courts to which an appeal may be taken from such courts, and (b) expressly waives, to the fullest extent it may effectively do so under applicable law, any objection which it may at any time have to venue in such courts, that any suit, action or proceeding therein has been brought in an inconvenient forum, or that any such court lacks jurisdiction.
  16. RELATIONSHIP OF THE PARTIES: Nothing in this Agreement shall be construed to place the parties in the relationship of legal representatives, partners, joint venturers or agents. Neither party shall have the power to oblige or bind the other party in any manner except as provided herein.
  17. WAIVER AND INTEGRATION: The failure of a party to insist upon strict adherence to any term of this Agreement, or to object to any failure to comply with any provision of this Agreement. shall not be a waiver of that term or provision, estop that party from enforcing that term or provision, or preclude that party from enforcing that term or provision by estoppel or laches. None of the terms of this Agreement shall be deemed to be waived or modified, including all provisions of this section, except by an express agreement in writing, signed by authorized officers of both parties. This Agreement constitutes the entire agreement between the parties, and supersedes all prior negotiations and agreements between the parties concerning its subject matter. This writing is intended as the final, complete and exclusive statement of the terms of the Agreement between the parties and cannot he changed or terminated orally.
  18. ASSIGNABILITY: LICENSEE may not voluntarily or by operation of law assign, sub-license, transfer, encumber, delegate or otherwise dispose of all or any part of its interest in this Agreement or any rights under this Agreement. LICENSOR shall have the right to assign, transfer, encumber or otherwise delegate this Agreement and its rights and duties hereunder to any company or entity affiliated with LICENSOR. This Agreement shall be binding upon, and shall inure to the benefit of; the pasties hereto and their respective successors and permitted assigns.
  19. SURVIVAL: All obligations of the parties of a continuing nature shall survive the termination or expiration of this Agreement.
  20. SEVERABILITY: If any provision of this Agreement is held by a court of competent jurisdiction or an arbitrator to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be interpreted and, if necessary, reformed by the parties or the Court in a manner to reflect as closely as possible the intentions of the parties when entering into this Agreement and be valid and enforceable.
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