This SDK License Agreement (“License Agreement”) is between R. A. Phillips Industries, Inc. (“Phillips”) and the person or entity accessing, installing or using the licensed software development kit and any associated documentation (“You”). The terms also apply to documentation for the application programming interfaces (collectively the “APIs”) and any software code provided by Phillips in conjunction with such documentation. The software code, documentation, APIs, and other materials made available by Phillips are collectively referred to in this License Agreement as the “SDK”. This License Agreement defines each party’s rights in the SDK.
IN ORDER TO USE THE SDK, YOU MUST FIRST AGREE TO THIS LICENSE AGREEMENT. BY DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE USING THE SDK, YOU ACCEPT THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL, ACCESS OR USE THE SDK.
IF YOU ARE AGREEING TO BE BOUND BY THIS LICENSE AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THIS LICENSE AGREEMENT. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY, YOU MAY NOT ACCEPT THE LICENSE AGREEMENT OR USE THE SDK ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY. YOU AGREE THAT THIS LICENSE AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
The SDK is made available by Phillips to integrate and enable certain functionality into Your Applications (defined below) to facilitate configuration and viewing of streaming video from a Phillips Product (defined below) installed on a trailer or other approved location.
- Definitions
“Confidential Information” shall mean data and information of a proprietary or confidential nature disclosed by or on behalf of Phillips under or relating to the SDK or this License Agreement, including, but not limited to, trade secrets, computer programs (including without limitation the SDK, all items in the SDK, and any derivative works, enhancements, modifications or improvements thereto), source code, object code, proprietary tools, methodologies and other information held in confidence by Phillips. Confidential Information shall not include (or shall cease to include) data or information that: (a) is or becomes generally known to the public on or after the date of execution of this License Agreement, other than as a result of any act or omission of You; (b) was rightfully known to You prior to its receipt from Phillips; (c) is rightfully furnished to You by a third party without restriction as to use or disclosure; or (d) is independently developed by You without use of or reference to Phillips’ Confidential Information.
“Customer” means the user of a Phillips Product who is using Your Application.
“Developer”, “You” and “Your” refers to any person or entity acquiring or using the SDK under the terms of this License Agreement.
“Documentation” means any documentation accompanying the SDK.
“Phillips Product” means the Phillips REAR-VU Backup Camera and other Phillips cameras.
“Sample Code” means software code that Phillips has included in the SDK and/or designated in the Documentation as “Sample Code” for You to incorporate into Your Applications.
“SDK” means the Phillips Camera Software Development Kit, including Sample Code, Tools, API Information, Documentation, source code, object code, and related items and includes any upgrades, modified versions, updates, additions, and copies of the SDK; provided, however, the SDK does not include rights with respect to the firmware installed on a Phillips Product nor the wireless connection protocol, encryption, and related software necessary for connecting to a Phillips Product.
“Tools” mean the programs and utilities that may be included in the SDK for You to test or compile Your Applications.
“Trademark” means any trademark, service mark, or logo of Phillips.
“Your Application(s)” means a program or programs consisting of code generated using the SDK, or any part thereof, designed to function with a Phillips Product.
2. Grant of License. Subject to the terms and conditions of this License Agreement, Phillips grants You a non-exclusive, nontransferable, revocable, personal, royalty-free license to: (a) install and use the SDK to develop Your Applications; (b) make a limited number of copies of the Documentation to be used by Your employees or consultants for development purposes only, and not for general business purposes or for distribution; and (c) distribute the SDK in object code form only as a component of Your Applications.
3. Restrictions on Licensed Rights. Except as expressly set forth in this License Agreement, You may not: (a) use the SDK to develop an application for use in a high-risk environment, such as a vehicle safety system, (b) directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code and/or file formats of any portion of the firmware for the Phillips Product or the wireless connection protocol, encryption, or software; (c) copy (except for backup purposes and with all labeling and copyright notices intact) or otherwise reproduce the SDK, in whole or in part; (d) directly or indirectly, sell, sublicense, rent, loan, share, disclose, transfer or lease the SDK, or any portion of the SDK, to any third party; (e) modify, adapt, alter, translate, or incorporate into or with other software or create a derivative work of any part of the SDK except as part of Your Application to use a Phillips Product; (f) remove, modify, or otherwise tamper with notices or legends on the SDK or any labeling on any physical media; (g) use the SDK in any manner to provide service bureau, time sharing, or other computer services to third parties; (h) distribute the SDK (other than the incorporation of distributable elements of the SDK in Your Applications in accordance with the terms of this License Agreement); (i) disclose the results of any performance benchmarks or similar testing of the SDK to any third party without Phillips’ prior written consent; or (j) use the SDK to develop applications for other cameras, devices or purposes, or to develop another software development kit.
In addition to all of the terms and conditions herein, You agree to comply with any rules or best practices made available by Phillips in connection with the SDK from time to time. Without limiting Phillips’ rights to revoke Your access to the SDK or terminate this License Agreement at any time without cause, Phillips may revoke Your access to the SDK or terminate this License Agreement immediately if You fail to comply with any such rules or best practices or any other terms or conditions herein.
4. Additional Restrictions on Licensed Rights. Further, You will not: (a) include or use the SDK or any of Your Applications in, or in connection with, any application or other product or service that includes content that is disparaging of Phillips, libelous or may otherwise be perceived as detrimental or harmful to Phillips and its business and reputation, as determined by Phillips in its sole discretion; (b) include or use the SDK or any of Your Applications in, or in connection with, any application or other product or service that includes content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Phillips in its sole discretion; (c) use the SDK or any of Your Applications to distribute any virus, spyware, adware, malware, or other harmful or malicious component; (d) use the SDK or any of Your Applications in any manner that is competitive with a Phillips Product, including, without limitation, in connection with any application or other product or service that also includes, features, endorses, or otherwise supports in any way a third party that provides services competitive to any Phillips Product (e.g. to connect to a non-Phillips camera), as determined in Phillips’ sole discretion; (e) use the SDK to circumvent, disable, or otherwise interfere with security-related features, encryption features or any other features of Phillips Products, including features that prevent or restrict the use or copying of any Phillips Product or enforce limitations on the use of Phillip Products and/or the source code, databases, functionality and software contained therein; (f) use or access the SDK for purposes of improperly monitoring the availability, performance, or functionality of any Phillips Product or for any competitive purposes; (g) use the SDK to create, develop, or use any program, software, or service that takes away or interferes with the operability or functionality of any Phillips Product or other software; (h) use the SDK in a manner that violates any applicable law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination, false advertising, or data privacy); (i) use Phillips’ Trademarks to market Your Applications without written permission of Phillips; or (j) use Phillips’ Trademarks or represent Your Applications in a manner that suggests Your Applications are endorsed by or in any way authorized by Phillips without written permission of Phillips.
5. Open Source Software. You agree that You will not (nor allow third parties to) use the SDK in any manner that would cause the SDK to become subject to an Open Source License. “Open Source License” includes, without limitation, a software license that requires as a condition of use, modification, and/or distribution of such software that the SDK be (a) disclosed or distributed in source code form; (b) be licensed such that the software may be freely used or used for the purpose of making derivative works; (c) be distributable at no charge; or (d) be licensed under the GNU General Public License, the GNU Lesser General Public License, or any other licenses for the development of free and open-source software (FOSS). Any violation of the foregoing provision shall immediately terminate all of Your licenses and other rights of the SDK granted under this License Agreement.
6. Requirement for Your Customers to Agree to Camera Mobile App EULA. You acknowledge and agree that, as part of the consideration for the SDK License provided herein, You will distribute Your Applications under the terms and conditions of the end user license agreement (“Phillips Industries Camera Mobile Application End User License” or the “Camera Mobile App EULA”) found at www.phillipsind.com/??. You must require all end users of Your Applications to agree to and be legally bound by the terms and conditions of the Camera Mobile App EULA, including any updated versions posted at the foregoing link.
7. No Trademark License. Nothing in this License Agreement gives You a right to use any of Phillips’ trade names, Trademarks, domain names or other distinctive brand features. You agree that You will not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any Trademark of Phillips or any mark that is confusingly similar to or will dilute the distinctive nature of the Phillips Trademarks. You also agree that You will not include the term “Phillips” as part of the name for any of Your Applications.
8. Intellectual Property Rights.Phillips reserves all rights related to the SDK, and any authorized copies that You make of the SDK, that are not expressly granted to You hereunder. The SDK is protected by copyright, trade secret and other intellectual property laws and treaties. Between You and Phillips, Phillips owns all title and interest in and to the SDK. Phillips shall be the sole and exclusive owner of any and all modifications, derivative works and improvements of the SDK (collectively, “Improvements”), and all items in the SDK, and the intellectual property rights therein, even if You make such Improvements. You hereby assign and agree to assign to Phillips (and will ensure that each of Your affiliates and contractors and Your and their respective personnel assign and agree to assign to Phillips) all right, title and interest (including intellectual property rights) in and to any Improvements. Except as expressly stated in this License Agreement, this License Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, service marks, or any other intellectual property or proprietary rights in the SDK and the items in the SDK. You agree not to remove, conceal or otherwise modify any copyright, trademark, service mark, logo or other proprietary notice or source identifier contained in or associated with the SDK. Phillips will be free to exercise all rights in any suggestions, ideas, or other feedback You provide to Phillips about the SDK or the Phillips REAR-VU Backup Camera or any other Phillips Product, without restriction and without compensating You.
In the event of a third-party claim that the SDK, or Your possession and use of the SDK, infringes any third party’s intellectual property rights, Phillips will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. If the SDK becomes, or in Phillips’ opinion is likely to become, the subject of an infringement claim, Phillips may at its sole option and expense: (i) procure for You the right to make continued use of the SDK; (ii) replace or modify the SDK so that the SDK becomes non-infringing; or (iii) terminate this License Agreement. This Section 8 (Intellectual Property Rights) sets forth Your and Phillips’ only rights and obligations under this License Agreement for any third party’s Intellectual Property Rights related to the SDK.
In the event of a third-party claim that Your Application, or Your Customer’s possession and use of Your Application, infringes such third party’s intellectual property rights, You are solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim and Your end user license agreement with Your Customer shall control as to Your Customer’s liabilities, damages and claims.
9. Confidential Information. During the Term and thereafter, You will (a) maintain Phillips’ Confidential Information in confidence and will employ reasonable steps to protect such Confidential Information from unauthorized or inadvertent disclosure or unauthorized use, including but not limited to all steps that You take to protect Your own information of similar importance that You consider to be proprietary and trade secret, but in no event less than reasonable care; (b) not to disclose Confidential Information to any third parties, except Your employees and independent contractors who have a “need to know” and who have signed agreements containing disclosure and use restrictions no less stringent than those set forth herein; and (c) not to use any Confidential Information for any purpose except as required to perform under this License Agreement.
This Section 9 (Confidential Information) shall not prohibit You from disclosing Phillips’ Confidential information to the extent reasonably required by law or regulation; provided that if You are required to disclose such information via court order, You shall provide prior notice to Phillips of such required disclosure and provide Phillips with the opportunity to obtain an appropriate protective or other court order.
10. NO WARRANTY. YOUR USE OF THE SDK IS AT YOUR SOLE RISK. THE SDK IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PHILLIPS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH RESPECT TO THE SDK, INCLUDING WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PHILLIPS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SDK WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
To the extent the SDK contains any third-party software, Your rights and obligations with respect to such software will be subject to and governed by the third party’s terms and conditions. The SDK is only available for supported devices and might not work on every device or every Phillips Product. Determining whether a device is a supported or compatible device for use with Your Applications is solely Your responsibility, and use of the SDK is done at Your own risk. Phillips does not represent or warrant that the SDK and Your Customer’s device are compatible.
11. Limitation Of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PHILLIPS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR DAMAGES ARISING FROM OR RELATED TO YOUR USE, YOUR CUSTOMER’S USE, OR YOU OR YOUR CUSTOMER’S INABILITY TO USE THE SDK, YOUR APPLICATIONS, THE PHILLIPS REAR-VU BACKUP CAMERA OR ANY OTHER PHILLIPS PRODUCT. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR PHILLIPS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. Customer Indemnification. You agree to indemnify, defend and hold Phillips and Phillips’ officers, directors, employees, agents, contractors, subsidiaries, affiliates, or parent companies of each of them (each an “Indemnified Person”) harmless from any claims, including without limitation, for any personal injury or death, arising out of (a) Your or Your Customer’s use or misuse of the SDK or Your Applications; (b) allegations that Your Applications infringe any copyright, trademark, trade secret, trade dress, patent, or other intellectual property right of any person, or defame any person or violate their rights of publicity or privacy; (c) any violation by You of any applicable law or regulation; (d) Your violation or other breach of any provision of this License Agreement; (e) Your Customer’s violation or other breach of any provision of the Camera Mobile App EULA; (f) negligence, recklessness or intentional misconduct; (g) violation of any laws (whether statutory, under common law or otherwise), rules or regulations applicable to the use of the SDK, Your Applications, or a Phillips Product; (h) inability to use a Phillips Product due to an act or omission of You, Your Customer or a Customer Representative, including due to Phillips’ refusal to provide access to a Phillips Product because You, Your Customer or any other Customer Representative has violated any provision of this License Agreement or the Camera Mobile App EULA; and/or (i) modification or misuse of a Phillips Product.
13. License Agreement and Camera Mobile App EULA Updates and Changes. Phillips reserves the right to modify this License Agreement and the Camera Mobile App EULA at any time and for any reason. Phillips will post the most current version of this License Agreement at https://phillipsind.com/company/company-policies/sdk-license-agreement/. You are responsible for complying with the updated terms posted online at Phillips’ website. Your continued use of the SDK after Phillips publishes notice of changes to this License Agreement or the Camera Mobile App EULA indicates Your consent to the updated terms.
14. SDK Updates and Changes. Updates to the SDK may modify or delete in their entirety certain features and functionality. Phillips reserves the right at any time to modify or discontinue the SDK, temporarily or permanently, or Your use of the SDK, or any portion thereof, with or without notice to You and without any form of compensation or consideration to You, regardless of the status of any of Your Applications. You acknowledge that Phillips has no obligation to ensure that an upgrade of the SDK or any Phillips Product will be compatible with any existing or planned Your Applications. You agree that Phillips has no obligation to provide any updates or to continue to provide or enable any particular features or functionality within the SDK.
15. Phillips Product Updates and Changes. Phillips reserves the right to modify the Phillips Product at any time and for any reason. Updates to the Phillips Product may affect Your Applications and You agree that Phillips has no obligation to provide You with any notice of updates or changes to the Phillips REAR-VU Backup Camera or other Phillips Product, nor is Phillips obligated to continue to provide or enable any particular features or functionality within the Phillips Product. You are solely responsible for ensuring that Your Applications continue to function with the updated Phillips Product.
16. No Support. Phillips is not obligated to provide any technical or other support to assist you or Your Customers with use, maintenance or updates of the SDK. You will be solely liable for all updates, corrections and modifications to Your Applications.
17. Non-Blocking of Parallel Development. You acknowledge that Phillips and/or its other licensees of this SDK are currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that You may develop based on Your license herein. Nothing in this License Agreement shall impair, limit or curtail Phillips or its licensees’ right to continue with its development, maintenance and/or distribution of such technology or products. You agree that You shall not assert in any way any patent or other intellectual property right owned by You arising out of or in connection with this SDK or modifications made thereto against Phillips, its subsidiaries or affiliates, or their customers or licensees, direct or indirect, agents and contractors (collectively, the “Phillips Product Users”) for the manufacture, use, import, licensing, offer for sale or sale of any Phillips Products or products incorporating the SDK.
18. Term and Termination. (a) The term of this License Agreement commences when You download or install the SDK, whichever comes first, and will continue in effect until terminated by You or Phillips as set forth in this Section 18 (Term and Termination). (b) You may terminate this License Agreement by deleting the SDK and all copies thereof. (c) Phillips may terminate this License Agreement at any time without notice for any reason, including if (i) You have breached any provision of this License Agreement, (ii) Phillips is required to terminate this License Agreement by law; (iii) Phillips ceases to support the SDK, which Phillips may do in its sole discretion, or (iv) Your Customer has breached the Camera Mobile App EULA. (d) Upon termination: (i) all rights granted to You under this License Agreement will also terminate; (ii) You must cease all use of the SDK and delete all copies of the SDK; (iii) You will immediately discontinue all distribution and support of any of Your Applications. (e) Termination of this License Agreement will not limit any of Phillips’ rights or remedies at law or in equity. Sections 8 (Intellectual Property Rights), 9 (Confidential Information), 10 (No Warranty), 11 (Limitation of Liability), 12 (Customer Indemnification), 23 (Governing Law and Venue), 24 (Irreparable Harm), and 26 (Waiver), along with any other provisions that would reasonably be deemed to survive termination, shall survive any termination and/or expiration of this License Agreement.
19. Data Collection. If You use the SDK to run applications developed by a third party or that access data, content, or resources provided by a third party or Your Customers, You agree that Phillips is not responsible for those applications, data, content, or resources. You are solely responsible for obtaining all required consents (provided another legal basis or ground does not apply), providing all required notices and disclosures to the standard imposed by applicable laws, including, but not limited to, the General Data Protection Regulation 2016/679 (the “GDPR”), and fulfilling all other legal obligations for Your Applications for (a) the processing of personal data (or “personal information,” or “personally-identifiable information” as such term is defined under applicable law) (“Personal Data”), and (b) obtaining access to an end-user’s device or terminal equipment. You agree to comply with all applicable foreign, international, national, state, and federal laws, rules, regulations, and directives in connection with Your processing and security of any Personal Data through any of Your Applications. You agree that You will protect the privacy and legal rights of Your Customers, prominently display a privacy policy that describes to Your Customers the information that is collected by You and Your Application and how such information is used and shared. You will maintain and process all user data in accordance with Your privacy policy and all applicable laws and regulations in any countries in which Your Application is distributed or used.
20. Assignment. Phillips expressly reserves the right to delegate any of its rights and obligations under this License Agreement to its assignees, suppliers and contractors. You may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) any of Your rights or obligations hereunder without the prior written consent of Phillips.
21. Export Regulation. The SDK may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the SDK to, or make the SDK accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the SDK available outside the US.
22. Severability. If any provision of this License Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this License Agreement will continue in full force and effect.
23. Governing Law and Venue. This License Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this License Agreement or the SDK shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Orange County. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
24. Irreparable Harm. You acknowledge, consent and agree that a breach, actual or threatened, of this License Agreement may cause irreparable harm to Phillips, the amount of which may be extremely difficult to estimate, thus making any remedy at law inadequate. Phillips will therefore be entitled to seek immediate injunctive relief and any other relief Phillips deems appropriate from a court of competent jurisdiction without having to post a bond or other security. This right will be in addition to any other remedy available to Phillips in law or equity.
25. Entire Agreement. This License Agreement constitutes the entire agreement between You and Phillips with respect to the SDK and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the SDK.
26. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this License Agreement and any applicable purchase or other terms, the terms of this License Agreement shall govern with respect to the SDK.
27. Independent Contractors. A party to this License Agreement will not be deemed to be an employee, agent, partner or legal representative of the other for any purpose and a party will have any right, power or authority to create any obligation or responsibility on behalf of the other.
