Timesys End User License Agreement
Timesys License Agreement for downloadable Software Products
Welcome to our “Timesys” website, https://www.timesys.com (the “Website”) developed, owned and operated by Timesys Incorporation (“Timesys”, “we”, or “us” or “our”). Please read the terms of this License Agreement (the “Agreement”) carefully before using this Website or accessing any information, content or services through the Website. This Agreement is a binding agreement between us and all visitors, users and others (including individuals and entities) who access and/or download the Software Products (excluding Open Programs defined in 5.3) through this Website (“User(s)”, “you”, “your”).
BY ACCEPTING THIS AGREEMENT, BY CLICKING ‘I AGREE’ (OR SIMILLAR BUTTON) OR BY ACCESSING OR USING THIS WEBSITE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT OR USE OR ACCESS ALL OR ANY PORTION OF THE WEBSITE.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. If you do not possess such an authority or do not agree to this Agreement, then you must not accept this Agreement and may not download the Software Product.
You may not access this Website for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
We reserve the right to amend this Agreement at any time with a thirty (30) days prior written notice to Users through the Website. You may terminate your use of our Website by providing written notice of termination to Timesys within such notice period if you do not agree to the change in Agreement. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Agreement. Your use of the Website following any such amendments will represent your acceptance to be bound by this Agreement as amended. We therefore recommend that each time you access or use the Website, you should read this Agreement.
For the purpose of this Agreement, Timesys and Users shall be individually referred to as “Party” and collectively shall be referred to as “Parties”.
The terms apply to the Software Products provided with this Agreement, all updates or upgrades to the Software Products that may be provided later by Timesys as part of any maintenance, technical support, or other services program for the software, unless such update or upgrade comes with separate software license terms, and all accompanying documentation, and utilities.
You automatically agree to Timesys Privacy Statement simply by using or logging into the Website.
Timesys constitutes different Software Products and this Agreement govern all those Software Products unless certain terms and conditions are superseded by a customer specific agreement. These terms do not apply to any programs provided to You under an open-source license, even if supplied in the same electronic file transmission as the Software Products. For example, Linux is subject to the GNU General Public License (“GPL”). Additional programs subject to other open source licenses, referred to herein as “Open Programs”.
The Software Products and Open Programs are separate and distinct programs even if provided within the same electronic file transmission. In addition, other programs subject to other license agreements may also be included within the same electronic transmission. Certain portions of the Software Products are subject to the Eclipse Public License (“EPL”) and/or other license terms.
1.1 “Documentation” shall mean any accompanying documents, content, data, user guides, online help, release notes, training materials provided to you along with the Software Products.
1.2 “Enhancements” shall mean any modification, update, upgrade or addition to the Software Products that, when made or added to the Software Products and its modules currently being used by you, provides minor functionality or enhancements to the Software Products but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by us to all its users as a part of their Support Services.
1.3 “Error” shall mean any verifiable and reproducible failure or inability of the Software Products to perform any material functions set forth in the Documentation due to any programming defect in the Software Products when used by you as specified under this Agreement or the Documentation. The term “Error” shall not include any failure or inability of the Software Products that (i) results from the misuse or improper use of the Software Products, (ii) does not materially affect the operation and use of the Software Products, (iii) results from any modification to the Software Products that is not a Licensor authorized change, (iv) results from any cause beyond reasonable control of the Licensor including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.
1.4 “Fixes” shall mean any modification or addition to the Software Products that, when made or added to the solution or modules currently being used by you, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Timesys to all its customers.
1.5 “License Fees” shall mean the fees payable to Timesys for the license to use Software Products.
1.6 “Support Services” shall mean the support and maintenance services for the Software Products.
1.7 “Software Products” shall mean any Timesys software provided in a downloadable form through the Website. This Agreement does not apply to Timesys Hosted Products.
2. HOW TIMESYS SOFTWARE PRODUCTS ARE DELIVERED
LinuxLink is the Timesys web portal for gaining access to downloadable Software Products:
● TimeStorm – IDE optimized for Embedded Linux development,
● Desktop Factory – Timesys embedded Linux build system development environment
● Embedded Board Farm (EBF) – Remote Debugging and Test Automation Infrastructure Tool
3. REGISTRATION OF YOUR ACCOUNT:
3.2 Users may register on the Website through their Accounts with Third Party Platforms (defined below) for availing the Software Products. You authorize us to import your login-in credentials, details and personal information dispersed over Third Party Platforms. “Third Party Platforms” would mean including but not limited to social networking platforms, such as Google and other similar platforms.
3.3 In some cases, an account may be assigned to you by an administrator, such as your employer or educational institution. If you are using or logging into an Account assigned to you by an administrator, additional terms may apply to your use of the Website. Moreover, your administrator may be able to access or disable your Account without our involvement.
3.4 The User shall be solely responsible for maintaining the confidentiality of the Account and for all other activities that occur under your Account, and you must keep your Account ids and password secure. You may not share or transfer your account with any third-party. If you believe that your Account has been compromised at any time, You agree to immediately notify your administrator and Timesys of any unauthorized use of Your account or any other breach of security of which You become aware. You must use reasonable efforts to stop any unauthorized use of your Account that is known or suspected. You shall be solely responsible for Your acts and omissions. Timesys shall not be liable for any losses caused by any unauthorized use of your Account, loss of data or functionality by the User. We also, at our sole discretion, reserve the right to refuse or cancel registration of any Account which we deem inappropriate.
3.5 Authorized Use: You agree that while using Software Products, You shall not violate any applicable law, regulation or governmental order. You hereby certify that You will not export or re-export products or technology obtained via Website in violation of applicable export regulations.
3.6 You shall comply with all Timesys’ reasonable security and other procedures and policies governing access to, and use of, Website that Timesys notified in writing to You in advance. In case of any discrepancy between Timesys procedures and policies governing access to and use of Website and this Agreement, this Agreement shall control.
a) Access: You are responsible for obtaining access to LinuxLink and that access may involve third party fees (such as ISP charges). In addition, You must provide and are responsible for all equipment necessary to access the LinuxLink.
b) Modifications and Termination: We reserve the right to modify our Website, Software or at any time, with or without notice to you. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Website at any time.
Compliance with Laws: You shall comply with all applicable local, state, national and foreign laws in connection with its use of the Software Products, including those laws related to data privacy, international communications, and the transmission of technical or personal data. You acknowledge that Timesys exercises no control over the content of the information transmitted by you or the permitted Users through the Software Products.
4. LICENSE GRANT, RESTRICTIONS AND OTHER CONSIDERATIONS
4.1 License Grant: Timesys hereby grants You a limited, non-exclusive, non-transferable license to install and use the Software Products for which You have paid any applicable fee(s), solely for Your internal use in the development of Your project and /or embedded applications (“Your Application”) for internal use. Depending upon the license type (Seat license or project License or Floating license), the Software Products may be used only (i) by the number of users or (ii) for the project with certain number of named users for which You have paid License Fee, if applicable. A License may be transferred from one user or project to another only on a permanent (not temporary) basis. Only Your employees and contractors that agree to this Agreement may access or use the Software Products. Timesys may offer certain Software Products on a “Floating License” basis. If You pay any applicable fee(s) for a Floating License, You shall have the license right to permit the specified number of concurrent users to access and use the Software Products.
4.2 Restrictions on Software Products: Except as expressly set forth above, You may not: (i) use, copy, disclose, distribute, modify, or create derivative works of the Software Products; (ii) use the Software Products for outsourcing, time-sharing, for the benefit of any third party, or in competition with Timesys; (iii) cause or allow any portion of the Software Products to be subject to any open source license except to the extent that such portion is provided to You by Timesys under the terms of such open source license; (iv) decompile, disassemble, or reverse engineer the Software Products, or permit any third parties, including end-users of Your Application, to do so; (v) export or import the Software Products or Your Application in violation of any applicable U.S. laws or regulations, including U.S. Department of Commerce Export Administration Regulations, or permit any end-user to do so; or (vi) permit end-users to copy, distribute, transfer, modify, or create derivatives of the Software Products, except as part of Your Application in a manner consistent with Your obligations as set forth in this Agreement.
4.3 The license granted to You in this Agreement for Software Products is contingent upon Your payment to Timesys of the License Fees for the Software Products, if applicable, in accordance with Timesys pricing policies current as of the date of Your acquisition of the Software Products.
a) License Fees and any applicable annual technical support fees for Your Software Products use are due and payable in advance of Your use of the Software Products, unless other payment terms are mutually agreed by both parties in writing.
b) Timesys reserves the right to charge interest at a rate of 1.5% per month or the highest rate allowable by law on any undisputed past due balances.
c) Any applicable License Fees are exclusive of any applicable taxes. You agree that You shall be responsible for the payment of all taxes related to the Software Productsand this Agreement, other than taxes based upon Timesys’ income.
4.5 Trial Software: If the Software Products is used for evaluation purpose only then the License granted hereunder is a limited, non-exclusive, non-transferable, revocable license to install and use Software Products solely during the License Period for internal review and testing of the Trial Software. This License shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall return to Timesys, or certify as destroyed, all Trial Software and related documentation. “License Period” means (subject to earlier termination as set forth in Section 8 below) the period of time beginning with the date upon which You first install the Trial Software and ending upon the earliest occurrence of any of the following events: (i) You purchase a license to Software Product and technical support for Software Products; or (ii) End date of the agreed upon trial period.
4.6 Pre-Release Software: If the Software Products has not yet been made generally available for licensing by the public (“Pre-Release Software”), then the license granted hereunder is a limited, non-exclusive, non-transferable, revocable license to install and use the Pre-Release Software solely during the License Period for internal review and testing of the Pre-Release Software. This license grant shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall return to Timesys, or certify as destroyed, all Pre-Release Software and related documentation. “License Period” means (subject to earlier termination as set forth in Section 8 below) the period of time beginning with the date upon which You first install Pre-Release Software and ending upon the earliest occurrence of any of the following events: (i) the Pre-Release Software is released and made generally available for licensing by the public; or (ii) Timesys notifies You of its intent to cancel this Agreement as it applies to Pre-Release Software (in which case the License Period will end thirty (30) days after such notification).
4.7 Export Compliance: In addition, You hereby certify that You: (a) are not a citizen of, nor located in, any of the countries prohibited from receiving exports from the United Stated of America (“US”), or prohibited from transacting with US citizens pursuant to US embargo or other sanctions; (b) are not prohibited from receiving US exports by being listed on any export denial list published by the: US State Department – Directorate of Defense Trade Controls, US Treasury Department – Office of Foreign Assets Control, or US Department of Commerce – Bureau of Industry and Security; and, (c) will not export or re-export US-origin products or technology obtained from Timesys in violation of US export regulations.
4.8 Records/Audit: You acknowledge that Timesys has the right, but not the obligation, to periodically audit Your use of the Software Products to ensure Your compliance with this Agreement and applicable laws. You agree to immediately notify Timesys of any unauthorized use of the Software Products, Your account, or any other breach of security of which You become aware. You shall maintain complete and accurate records of each of Your employees and contractors that use the Software Products for a period of three (3) years. Timesys may inspect such records upon request at any time during Your normal business hours without interfering with Your normal business operations, during the term of this Agreement and for three years thereafter at Timesys sole cost.
4.9 Additional Consideration – Publicity: In further consideration of Paid Use License granted hereunder, You agree to permit Timesys to use Your name and trademarks to identify You as a Timesys customer on Timesys Website, in Timesys marketing materials, and in other sales and marketing activities. Timesys agrees to cooperate with You in reasonable publicity efforts involving Software Products, such as, for example, media releases and marketing materials in accordance with Your reasonable request.
4.10 Marks: You and Timesys hereby grants to the other the non-transferable, non-assignable, revocable right and license to use the other’s name and trademarks (“Marks”) solely in fulfillment of obligations and exercise of rights under this Agreement. Each Party shall adhere to each other’s policies regarding use of the other’s Marks, and shall retain the right to revoke permission to use such Marks.
4.11 General: All rights not expressly granted herein are expressly reserved.
5.1 “Confidential Information” means information disclosed by one Party to the other which includes all non-public or proprietary information treated as confidential by a Party, including, without limitation, any and all Software, Documentation, Enhancement, financial, business, technical, marketing, commercial, legal or other information of whatever nature, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, and such other information irrespective of whether such information has been or will be disclosed in writing, verbally or in any other form, disclosed to the other party under this Agreement.
5.2 Regardless of the above, the term Confidential Information shall not include any information which the party receiving the information can clearly establish by documented evidence (i) was at the time of disclosure to it, in the public domain; (ii) was after disclosure of it, published or otherwise becomes part of the public domain through no fault or breach of the receiving party; (iii) was known to the receiving party prior to such disclosure, without any undertaking towards a third party to keep such information confidential; (iv) was provided to it from a third party who had a lawful right to disclose such information to it and which was disclosed by such third party without any obligation for the receiving party to keep such information confidential; or (v) was independently developed by the receiving party without use of the Confidential Information of the disclosing party.
5.3 Receiving party shall be entitled to disclose Confidential Information in response to a valid order of a court or any other governmental body having jurisdiction over the respective Parties or this Agreement or if such disclosure is otherwise required by law, provided that the receiving party shall first, to the extent possible, notify the disclosing party of the required disclosure and make reasonable efforts to reduce any damage to the other party resulting from such disclosure.
5.4 The receiving party shall only use the Confidential Information for the purpose it is disclosed for. Furthermore, the receiving party shall keep Confidential Information and data received from disclosing party in strict confidence and shall not disclose to any third parties except to a limited group of receiving party’s directors, officers, agents, authorized representatives on a need-to-know basis. Receiving party shall ensure that any person to whom the receiving party gives access to Confidential Information of the disclosing party will comply with the confidentiality requirements set out in this Agreement. The receiving party shall be responsible for any breach of such confidentiality requirements by such persons.
5.5 The receiving party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing party, entitling disclosing party to obtain injunctive relief in addition to all legal remedies.
5.6 Upon request by the disclosing Party, the receiving Party shall immediately return to the disclosing Party, all Confidential Information disclosed by the disclosing party and all copies thereof. All such information shall be and shall remain the sole property of the disclosing party. The obligations in this Section 4 shall apply for the duration of this Agreement and for a period of three (3) years thereafter.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 General: Timesys holds and retains all right, title and interest in and to Website, Software Products, Documentation, Enhancements, the related source code, any and all modifications to or derivatives of Software, and branding thereof any and all associated patents, copyrights, and other intellectual property rights such as copyrights, trademarks, service marks therein. Any rights not expressly and unequivocally granted to the User are reserved.
6.2 Your Content: You hold and retain all right, title and interest in and to Your Content, the related source code, any and all modifications to or derivatives of Your Content, and any and all associated patents, copyrights, and other intellectual property rights. All software related to Your Content is your Confidential Information.
6.3 Third Party: While Software Products, you may allow access to websites that are owned and/or operated by third parties and are not under Timesys control (“Third Party Websites”). You acknowledge and agree that Timesys provides such links to Third Party Websites only as a convenience and the existence of any link does not imply endorsement by Timesys of any Third Party Website or any part of its content or any products or services available through such site.
6.4 Open Programs: This Agreement does not apply to the Linux kernel or any other software tools, drivers or other components identified as subject to an open source license in the relevant notice, license and/or copyright files included with the programs (collectively the “Open Programs”). Open Programs may be supplied in the same electronic file transmission as proprietary software, but are separate and distinct programs.
6.5 Injunctive Relief: You hereby acknowledge and agree that Software Products and related source code are proprietary and confidential to Timesys and that Software Products and related source code contain valuable Timesys trade secrets, the disclosure of which would cause Timesys irreparable harm for which monetary compensation would be inadequate. You therefore further agree that if You breach Your obligations under this Agreement, Timesys shall be entitled to injunctive relief from a court of competent jurisdiction without the need to post any bond or demonstrate actual damages.
7. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
Timesys respects the intellectual property of others, and we ask our users to do the same. Timesys may, when acting reasonably and in good faith, in appropriate circumstances and at its discretion, disable and/or terminate the Accounts of users who may be infringing on the intellectual property of others with Your Content on the Timesys Service. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Timesys Copyright Agent the following information:
7.1 an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
7.2 a description of the copyrighted work or other intellectual property that You claim has been infringed;
7.3 a description of where the material that You claim is infringing is located;
7.4 your address, telephone number, and email address;
7.5 a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
7.6 a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
For Notice of claims of copyright or other intellectual property infringement can be reached at email@example.com or by written notice to Timesys Corporation, 1905 Blvd. of the Allies, Pittsburgh, Pennsylvania 15219 USA.
THIS SECTION 7 IS SUBJECT TO SECTION 12 AND STATES THE ENTIRE LIABILITY OF TIMESYS AND ITS LICENSORS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION BY ANY TIMESYS SOFTWARE LICENSED UNDER THIS AGREEMENT
8. TECHNICAL SUPPORT
Timesys Support Services consists of the support described at https://linuxlink.timesys.com/about/support/. Timesys will endeavor to provide Fixes to any Errors reported by you.
9. TERM AND TERMINATION
9.1 This Agreement shall become effective upon downloading the Software Products and shall remain in full force and effect until terminated under this Section 8.
9.2 Timesys may terminate Your Account with respect to the Services and/or Software (including Your access to LinuxLink) in the event that You materially violate this Agreement, and such violation is incurable or in case of a curable violation, with written notice from Timesys to You, if such violation has not been cured to Timesys reasonable satisfaction within thirty (30) days after such written notice. You may terminate this Agreement by providing notice to Timesys at any time. Upon termination for any reason, You shall immediately cease use of the Software Products and delete the Software Products from your systems.
9.3 The confidentiality obligation in Section 4 of this Agreement shall survive for a period of three (3) years after any such termination. Sections 5, 6, 9, 10, 11, 13, and 14 of this Agreement also shall survive after any such termination.
10. NO WARRANTY
10.1 THE TIMESYS SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, ACCURACY, OR ARISING OTHERWISE IN LAW OR EQUITY OR COVENANT BASED ON A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. TIMESYS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US.
10.2 Pre-Release Software may not be fully tested, debugged, or otherwise readied for production use. Any information provided by Timesys regarding the development status of Pre-Release Software is for Informational Purposes Only.
You agree to indemnify, defend, and hold Timesys harmless from and against any and all claims, suits, damages, costs, and expenses arising from –
i. Your breach of or violation of applicable laws and regulations;
ii. Use of Software Products other than as permitted under this Agreement;
iii. A third party claim made against Timesys for infringement or misappropriation based upon following conduct –
● Your use of Software Products;
● Your Content infringes any patent, copyright or trademark or misappropriates any trade secret.
12. LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law and notwithstanding the failure of any remedy to fulfill its essential purpose: in no event shall Timesys, Timesys officers, directors, employees, agents, or distributors be liable to You (or to any third party claiming under or through you) for any direct, indirect, special, incidental, consequential or exemplary loss or damages or legal fees arising from or related to the use of Software Products, howsoever arising, or any damages related to this Agreement in excess of the amount of License Fees paid by you to Timesys hereunder in the twelve (12) months preceding the event giving rise to the claim. Notwithstanding the foregoing, in no event shall Timesys, Timesys officers, directors, employees, agents, or distributors be liable for any indirect, special, punitive, or consequential damages, including without limitation, loss of profits, howsoever arising, even if informed of the possibility of such damages.
13. DISPUTE RESOLUTION
In the event of a dispute between You and Timesys arising in connection with this Agreement, such dispute shall be solely and finally resolved by binding arbitration under the rules and auspices of the American Arbitration Association. Arbitration shall take place in Pittsburgh, PA, U.S.A. The foregoing shall not prevent each party from seeking applicable injunctive relief in a court of competent jurisdiction.
14. CHOICE OF LAW AND FORUM
This Agreement shall be governed for all purposes by the laws of the Commonwealth of Pennsylvania.
15.1 Entire Agreement: This Agreement contain the entire agreement and understanding between You and Timesys with respect to the subject matter. Additional or conflicting terms on any document issued by a Party shall have no force or effect against the other Party. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this Agreement shall not be affected.
15.2 No Assignment: This Agreement may not be assigned by you, in whole or in part, without prior written consent of Timesys. Any attempted transfer or assignment by you in violation hereof shall be null and void.
15.3 No Waiver: No waiver by either Party of any rights under this Agreement will be effective unless such waiver is signed by the Party against whom enforcement is sought.
15.4 Notice: Any notices relating to this Agreement should be sent you via registered delivery to Timesys Corporation, 1905 Blvd. of the Allies, Pittsburgh, Pennsylvania 15219 USA. Whereas, in case of any notice from Timesys, Timesys may update such notice on the Website or send an email to your Account.
Thank you for your cooperation. We hope you find the Website https://www.timesys.com helpful and convenient to use! Questions or comments regarding this Website, including any reports of non-functioning links, should be submitted using our Contact Us Form or via registered mail to: Attention President, Timesys Corporation, 1905 Blvd of the Allies, Pittsburgh, PA 15219, USA. We try to answer every email in a timely manner but due to volume may not always be able to do so.