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
- PRODUCTS. “Products” means
software developed by or on behalf of LICENSEE that utilizes the SDK.
- 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
or any other trademarks.
- TECHNICAL SUPPORT.
LICENSEE shall be responsible for all customer support for Products.
- 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
LICENSEE agrees not to adopt, use or register any corporate name, trade
name, trademark, service mark or certification mark, or other designation
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
the benefit of LICENSOR. LICENSEE may not suggest or imply that LICENSOR
in any way endorses or sponsors Products by LICENSOR.
- QUALITY CONTROL. LICENSEE
acknowledges that the maintenance of the high quality of Products is an
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.
- MARKETING OF PRODUCTS.
LICENSEE may in marketing Products that use the Data Link USB system make
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
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
should anything be said that is inconsistent with LICENSOR's image
and reputation. Advertising is permitted in such places as advertising
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,
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
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.
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.
- 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.
- 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.
- 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.
AND OTHER DAMAGES. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL,
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
OF THIS AGREEMENT.
- INFRINGEMENT: LICENSEE
shall promptly notify LICENSOR of any suspected infringement of or challenge
LICENSOR's rights in the SDK and the
Data Link USB System.
- 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.
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.
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
All federal or foreign law questions shall be governed by federal law
or the law of the applicable foreign jurisdiction. With respect to any
to this Agreement, LICENSEE (a) irrevocably submits to the non- exclusive
jurisdiction of the courts of the State of Connecticut and the United States
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
therein has been brought in an inconvenient forum, or that any such court
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.
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
parties concerning its subject matter. This writing is intended as the
final, complete and exclusive statement of the terms of the Agreement between
parties and cannot he changed or terminated orally.
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
affiliated with LICENSOR. This Agreement shall be binding upon, and shall
inure to the benefit of; the pasties hereto and their respective successors
SURVIVAL: All obligations
of the parties of a continuing nature shall survive the termination or
expiration of this Agreement.
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
- 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
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
of this Agreement shall survive termination or expiration of
this Agreement provided such software meets LICENSOR's
quality control standards.