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Timesys Terms of Service – August 1, 2020

Please read these Terms of Service (“Terms“) carefully because they are a binding agreement between You and Timesys Corporation, Inc., (“Timesys” or “We”). Party refers to either You or Timesys and Parties refers to You and Timesys.

These Terms govern your use of the websites that link to these Terms. In these Terms, the word “Sites” refers to each of these websites and the services offered on those Sites. You automatically agree to these Terms and to our Privacy Statement simply by using or logging into the Sites.

Please note that we offer many services. Your use of Timesys products and services are pursuant to a separate manually or digitally-executed agreement. Those additional terms become part of your agreement with us, if you use the services or log into the Sites.
 

  1. WHAT THESE TERMS COVER
    1. Hosted Products and Services (“HPS”): These Terms govern our Hosted Products and Services, related Support, and Additional Services.
    2. “Software Products”: These Terms do not apply to our downloadable software products, use of which requires a separate license agreement (EULA) with us.
    3. For clarity, however, any client software (e.g., a desktop or mobile application) we provide as part of the Hosted Products and Services themselves remains subject to these Terms.
  2. HOW HPS IS ADMINISTERED
    1. Hosted Products and Services (HPS)
      1. Vigiles – a SCA vulnerability monitoring and patch mitigation tool optimized for embedded software
      2. Timesys Web Factory
      3. Embedded Board Farm (Hosted Version)
      4. Test Automation Solution (Hosted Version)
      5. BSP Maintenance – includes access to Your Timesys hosted git repository
      6. Platinum Support – includes access to Your Timesys hosted git repository
    2. Your Account: LinuxLink is the Timesys web portal for gaining access to HPS. You may be required to create a LinuxLink account and specify a password in order to use certain services or features on the Sites. To create an account, you must be at least 16 years old and you must provide truthful and accurate information about yourself. Don’t try to impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes.

      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 Sites. Moreover, your administrator may be able to access or disable your account without our involvement.

      You may not share your account with anyone else. Please keep your password confidential, and try not to use it on other websites. 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.

    3. Authorized Use: You agree that in using HPS You shall not violate any applicable law, regulation or governmental order. You hereby certify that You will not export or re-export US-origin products or technology obtained via HPS in violation of US export regulations.

      You shall not sell, lease, assign, sublicense or otherwise transfer access to the HPS in whole or in part, to any third party. You shall comply with all Timesys reasonable security and other procedures and policies governing access to, and use of, HPS 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 HPS and this Agreement, this Agreement shall control.

    4. Service 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 LinuxLink.
    5. Your Content: Once You have a LinuxLink account , You may be provided with the ability to store Your customized Linux code, tools, designs, documentation, manifests, workorders, security reports, test reports, and specifications on the Hosted Products (together with all materials saved, uploaded or otherwise contributed by You to the LinuxLink site, collectively referred to as “Your Content”).
    6. Modifications and Termination: We reserve the right to modify our Sites 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 Sites at any time.
  3. SUBSCRIPTION FEE, OTHER CONSIDERATIONS AND RESTRICTIONS
    1. HPS Use License: Subject to these Terms, if You purchased a subscription to HPS, Timesys hereby grants You a limited non-exclusive, non-transferable license (without the right to sublicense or redistribute) to use the specific HPS for which You have paid applicable fees solely for Your internal business purposes and solely for the purpose of accessing and using HPS, any applicable client software and other tools for using HPS in accordance with these Terms. The HPS may only be accessed by the number of users for which You have paid the applicable fees. Use of the HPS is governed by the Terms current at the time of Your use, and which may be revised from time to time.
    2. The Use License (“License”) granted to You in these Terms is contingent upon Your payment to Timesys of the Subscription Fees for a specific HPS, if applicable, in accordance with Timesys pricing policies current as of the date of your order.
    3. 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.
    4. Any applicable Subscription and Technical Support Fees are exclusive of any applicable taxes. You agree that You shall be responsible for the payment of all taxes related to the Timesys HPS, Your Content, and these Terms, other than taxes based upon Timesys’ income.
    5. Trial Software: If HPS is used for evaluation purpose only then the License granted hereunder is a limited, non-exclusive, non-transferable, revocable license to use HPS solely during the License Period for internal review and testing of HPS. This License shall terminate immediately and without further notice upon expiration of the License Period, at which time You should stop using HPS and related documentation. “License Period” means (subject to earlier termination as set forth in Section 9 below) the period of time beginning with the date of activation and ending upon the earliest occurrence of any of the following events: (i) You purchase a subscription and technical support for HPS; or (ii) End date of the agreed upon trial period.
    6. Pre-Release HPS: If the Timesys HPS has not yet been made generally available for licensing by the public (“Pre-Release HPS”), then the license granted hereunder is a limited, non-exclusive, non-transferable, revocable license to use the Pre-Release HPS solely during the License Period for internal review and testing of the Pre-Release HPS. This license grant shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall stop using Pre-Release HPS and related documentation. “License Period” means (subject to earlier termination as set forth in Section 9 below) the period of time beginning with the date upon which You first access the Pre-Release HPS and ending upon the earliest occurrence of any of the following events: (i) the Pre-Release HPS is released and made generally available for licensing by the public; or (ii) Timesys notifies You of its intent to cancel these Terms as they applies to Pre-Release HPS (in which case the License Period will end thirty (30) days after such notification).
    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 United States (“US”) exports, or prohibited from transacting with US citizens pursuant to US embargoes 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.
    8. You shall maintain complete and accurate records of each of Your employees and contractors that use HPS for a period of three (3) years. One (1) time per year and subject to a thirty (30) business days advance notice, 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.
    9. Additional Consideration – Publicity: In further consideration of the HPS 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(s), in Timesys marketing materials, and in other sales and marketing activities. Timesys agrees to cooperate with You in reasonable publicity efforts involving HPS, such as, for example, media releases and marketing materials in accordance with Your reasonable request.
    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 these Terms. 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.
    11. General: All rights not expressly granted herein are expressly reserved.
  4. CONFIDENTIALITY

    Each party agrees that it shall not disclose any Confidential Information of the other party nor use any such information other than for purposes of performing its obligations and exercising its rights under this Agreement. “Confidential Information” means all non-public or proprietary information treated as confidential by a party to this Agreement, including, without limitation, any and all financial, technical, marketing, commercial, legal or other information of whatever nature, 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.

    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.

    Any 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 or by any binding applicable stock exchange rules, provided that the party shall first, to the extent possible, notify the other party of the required disclosure and make reasonable efforts to reduce any damage to the other party resulting from such disclosure.

    Each 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.

    The obligations in this Section 4 shall apply for the duration of this Agreement and for a period of five (5) years thereafter.

  5. INTELLECTUAL PROPERTY RIGHTS
    1. General: Timesys holds and retains all right, title and interest in and to HPS, the related source code, any and all modifications to or derivatives of HPS, and any and all associated patents, copyrights, and other intellectual property rights. All software related to HPS is Timesys Confidential Information.

      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.

    2. Third Party: HPS 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.
    3. HPS and Your Content: HPS is separate and distinct from Your Content. Timesys obtains no rights in or to Your Content except to the extent necessary for Timesys to provide HPS to You, including without limitation for purposes of security and system operations, maintenance and enhancements of HPS.
    4. Open Programs: These Terms do 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.
    5. Injunctive Relief: You hereby acknowledge and agree that HPS and related source code are proprietary and confidential to Timesys and that HPS 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 these Terms, Timesys shall be entitled to injunctive relief from a court of competent jurisdiction without the need to post any bond or demonstrate actual damages.
  6. YOUR WARRANTIES

    You warrant that You will not use the HPS to:

    1. publish Your Content that You knowingly do not have a right to make available under any law or under contractual or fiduciary relationships;
    2. publish Your Content that knowingly infringes any patent, trademark, trade secret, copyright or other intellectual property or other proprietary rights of any party;
    3. publish Your Content or any other material that knowingly contains software viruses or any other computer code that interrupts, destroys or limits the functionality of any computer software or hardware or telecommunications equipment;
    4. publish Your Content or any other material that is knowingly unlawful, fraudulent, harassing, libelous or obscene;
    5. knowingly interfere with or attempt to interfere with the proper working of HPS;
    6. knowingly take any action which imposes an unreasonable or disproportionately large load on HPS, and
    7. Intentionally or unintentionally violate any applicable local, state, national or international law, regulation or order.
  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 the users’ 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:

    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;
    2. a description of the copyrighted work or other intellectual property that You claim has been infringed;
    3. a description of where the material that You claim is infringing is located;
    4. your address, telephone number, and email address;
    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;
    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.
       

      Timesys Agent for Notice of claims of copyright or other intellectual property infringement can be reached at legal@timesys.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 HPS LICENSED UNDER THIS AGREEMENT

  8. TECHNICAL SUPPORT

    Timesys Service Technical Support consists of the support described at https://linuxlink.timesys.com/about/support/

    Use of the HPS may require entry of specific passwords and/or API keys issued by Timesys to You. You agree to the use of these passwords and/or API keys in accordance with these Terms, to hold these passwords and/or API keys as Confidential Information.

  9. TERM AND TERMINATION
    1. These Terms shall become effective upon logging into the Sites and shall remain in full force and effect until terminated under this Section 9.
    2. Timesys may terminate Your subscription license to the HPS (including Your access to LinuxLInk) in the event that You materially violate these Terms, with written notice from Timesys to You, and if such violation has not been cured to Timesys reasonable satisfaction within thirty (30) days after such written notice. You may terminate these Terms by providing notice to Timesys at any time. Upon termination for any reason, You shall immediately cease use of HPS. The confidentiality obligation in Section 4 of these Terms shall survive for a period of three (3) years after any such termination. Sections 5, 6, 7, 10, 11, 12, 13, 14 and 15 of this Term also shall survive after any such termination.
    3. Upon termination of these Terms by You or Timesys for any reason or no reason, Timesys shall cease to use and delete (except from backup) all of Your Content stored on HPS. You hereby release and hold Timesys harmless for any loss of data You may suffer as a result of the deletion of Your Content pursuant to this Section 9.
  10. NO WARRANTY
    1. Timesys shall use reasonable efforts in its quality assurance processes to ensure that HPS is free from error, defect or bug (“ERRORS”). However, Timesys does not warrant that HPS shall be entirely free from ERRORS, currently known or unknown.
    2. Timesys provides storage of your Content solely for purposes of assisting you with your development. You are solely responsible for separate storage and back-up of any content that you store or otherwise contribute to HPS. Any such content is stored at your own risk and Timesys expressly disclaims responsibilities for any loss of data that results from the storage of any such material on HPS, regardless of how the loss occurs.
    3. Pre-Release HPS may not be fully tested, debugged, or otherwise readied for production use. Any information provided by Timesys regarding the development status of Pre-Release HPS is for Informational Purposes Only.
  11. INDEMNIFICATION

    You agree to indemnify, defend, and hold Timesys harmless from and against any and all claims, suits, damages, costs, and expenses arising from Your use of HPS, howsoever arising.

  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 the other party respectively or any other party for any loss or damages or legal fees arising from or related to the use of HPS, howsoever arising, or any damages related to these Terms in excess of the amount of fees paid hereunder in the twelve (12) months preceding the event giving rise to the claim; and, 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 these Terms, 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

    These Terms shall be governed for all purposes by the laws of the Commonwealth of Pennsylvania.

  15. GENERAL

    These Terms 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. These Terms may not be modified or appended except by an agreement in writing signed by the party against whom enforcement is sought. If any provision of these Terms is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of these Terms shall not be affected. These Terms may not be assigned by a party, in whole or in part, without prior written consent of the other party. No waiver by either party of any rights under these Terms will be effective unless such waiver is signed by the party against whom enforcement is sought. Any notices relating to these Terms should be sent via receipted delivery to Timesys Corporation, 1905 Blvd. of the Allies, Pittsburgh, Pennsylvania 15219 USA.