Notch SDK AGREEMENT
This Notch SDK Agreement (“Agreement ”) is between the individual or entity (“you ” or “Developer ”) that accepts it, and Notch Interfaces Inc. (“Notch ”). You accept this Agreement by clicking an “agree” or similar button, where this option is provided by Notch, or by your use or access to the SDK or any part of the SDK. Your agreement to these terms also binds your authorized users, your company or organization. If you do not agree to the terms of this Agreement, do not accept it. Before accepting this Agreement, please carefully read it. Capitalized terms used but not defined in the body of this Agreement have the meaning given them in the “Definitions” exhibit.
1. Development License
1.1. Development License. Conditioned upon compliance with the terms and conditions of this Agreement, Notch hereby grants you a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to: (a) install and use a reasonable number of copies of the SDK on computers owned or controlled by you for the purpose of developing and testing applications that are intended for use solely in connection with Notch Sensors, Notch Software, “Powered by Notch” Devices, and “Powered by Notch” Software (“Application ”); (b) install and use a reasonable number of copies of the SDK on computers owned or controlled by you for the purpose of developing and testing hardware devices that are intended for use solely in connection with Notch Sensors, Notch Software, other “Powered by Notch” Devices and “Powered by Notch” Software (“Device ”); and (c) modify and incorporate into your Application or Device any sample code provided in the SDK.
1.2. Restrictions. The license granted to you in Section 1.1 is subject to the following restrictions, as well as others listed in this Agreement:
1.2.1. Except as expressly permitted in Section 1.1: (a) you may not publish, distribute or copy the SDK, and (b) you may not modify or create derivative works of the SDK.
1.2.2. You may use the SDK solely in connection with Notch Sensors, Notch Software “Powered by Notch” Devices, and “Powered by Notch” Software.
1.2.3. You may not, and may not enable others to, copy (except for backup purposes), modify, reverse engineer, decompile, disassemble, adapt, or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, design, engineering, or algorithms in the Notch Software, Notch Sensors, “Powered by Notch” Devices, and “Powered by Notch” Software or any software that forms part of the SDK, nor attempt to circumvent any related security measures (except as and only to the extent any foregoing restriction is prohibited by applicable law or permitted by applicable law notwithstanding the foregoing restriction).
1.2.4. You may not remove, obscure, or alter any proprietary rights or confidentiality notices within the SDK or any software, documentation or other materials in it or supplied with it.
1.2.5. You may not create Applications, or “Powered by Notch” Devices or other software or devices that prevent or degrade the interaction of “Powered by Notch” Software developed by others with the Notch Software.
1.3. Updates. The terms of this Agreement will apply to any Updates that Notch makes available to you. You agree that Updates may require you to change or update your Application, and may affect your ability to use, access or interact with the Notch Software, the Notch Sensor, the Notch application store, “Powered by Notch” Devices, and “Powered by Notch” Software and/or the SDK.
2. “Powered by Notch” Distribution Program
2.1. Application to “Powered by Notch” Distribution Program. In order to distribute your Application or your Device, you must submit your Application or Device to Notch for licensing consideration through its “Powered by Notch” program. Applications or devices that are accepted into the “Powered by Notch” program will become “Powered by Notch” Software and “Powered by Notch” Devices. You must first decide that your Application or Device has been adequately tested and is complete. By submitting your Application or Device, you represent and warrant that your Application or Device complies with the program requirements and application and device specifications provided to you by Notch and updated from time to time. You further agree that you will not attempt to hide, misrepresent or obscure any features, content, services or functionality in your submitted Applications or Device from Notch’s review or otherwise hinder Notch from being able to fully review such Applications and Devices. You agree to provide access to or samples of any such applications or devices at your expense (samples will not be returned). You agree to cooperate with Notch in this submission process and to answer questions and provide information and materials reasonably requested by Notch regarding your submitted Application or Device, including information Notch may request relating to your Application or Device, the operation of your business, or your obligations under this Agreement. Notch may require you to carry certain levels of insurance for certain types of Applications or Devices and name Notch as an additional insured. If you make any changes to an Application or Device after submission to Notch, you must resubmit the Application or Device to Notch. Similarly all bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases, redesigns, and new versions of your Application or Device must be submitted to Notch for review in order for them to be considered for a distribution license, except as otherwise permitted by Notch.
2.2. Selection by Notch for a Distribution License. You understand and agree that if you submit your Application or Device to Notch to the “Powered by Notch” program for a distribution license, Notch may, in its sole discretion:
(a) determine that your Application or Device does not meet all or any part of the “Powered by Notch” program requirements or application and device specifications then in effect;
(b) reject your Application or Device for a distribution license for any reason, even if your Application or Device meets the “Powered by Notch” program requirements or application and device specifications; or
(c) select and approve your Application or Device for a “Powered by Notch” distribution license. If accepted, your Application or Device will be authorized to run on or interact with Notch Sensors, Notch Software, “Powered by Notice” Devices or “Powered by Notch” Software upon an End Users unlocking of their Notch Sensors, “Powered by Notch” Device or “Powered by Notch” Notch Software of “Powered by Notch” Software, as required by Notch.
Notch shall not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your Application or Device development, use of the Notch Sensors, Notch Software, “Powered by Notch” Devices, or “Powered by Notch” Software or your participation in the program, including without limitation the fact that your Application may not be selected for a “Powered by Notch” distribution license. You will be solely responsible for developing Applications and Devices that are safe, free of defects in design and operation, and comply with applicable laws and regulations. You will also be solely responsible for any documentation, end-user customer support and warranties for such Applications and Devices. The fact that Notch may have reviewed, tested, approved or selected an Application or Device will not relieve you of any of these responsibilities.
2.3. Applications and Devices . Applications or Devices accepted into the “Powered by Notch” distribution license program may be distributed: through the Notch Store, if selected by Notch, (2) through any other distribution channel if selected and approved by Notch.
2.4. Distribution License. Conditioned upon compliance with the terms and conditions of this Agreement and your acceptance into the “Powered by Notch” program by written confirmation from Notch, Notch hereby grants you a limited, non-exclusive, personal, revocable, non-transferable, royalty-bearing license under Notch's applicable intellectual property rights to the extent necessary to: (a) copy and distribute (or have copied and distributed) the then-current version of the Notch Redistributables, solely as compiled with, incorporated into, or packaged with, your Application or Device (provided it is not a Specialized Application); and (b) to make (but not have made), use, sell, offer for sale and import your Application or Device (provided it is not a Specialized Application) using the then-current version of the Notch Redistributables. In the event a new version of the Notch Redistributables is released, you must submit the updated version to Notch prior to distribution of such new version in order to retain your distribution license for the new version.
2.5 Trademarks. Conditioned upon compliance with the terms and conditions of this Agreement and your acceptance into the “Powered by Notch” program by written confirmation from Notch, you may indicate that your Application or Device is “powered by Notch”, solely in accordance with the brand guidelines provided to you by Notch. However, unless provided in an agreement between you and Notch, you may not otherwise use “Notch Interfaces”, “Notch”, or any other trademark of Notch in connection with your Application, Device or company, or in any URL, product, service, name field or logos created by you.
2.6 Delivery of Free “Powered by Notch” Applications or Devices. If your Application or Device will be distributed to end-users for free (no charge), then Notch may, in its sole discretion, choose to grant you a non-royalty bearing trademark and distribution license.
2.7 Delivery of Fee-Based “Powered by Notch” Applications. If you intend to charge end-users a fee of any kind for your Application, you acknowledge and agree that Notch shall be entitled to, and you shall pay to Notch thirty percent (30%) of the sales price of such Application, subject to the adjustment in the reasonable discretion of Notch.
2.8 Delivery of Fee-Based “Powered by Notch” Devices. If you intend to charge end-users a fee of any kind for your “Powered by Notch” Device, you acknowledge and agree that Notch shall be entitled to, and you shall pay to Notch, the higher of two dollars ($2) or thirty percent (30%) of the sales price of such “Powered by Notch” Device, subject to the adjustment in the reasonable discretion of Notch.
2.9 Delivery of Fee-Based “Powered by Notch” Products. If you intend to charge end-users a fee of any kind for your “Powered by Notch” Product, you acknowledge and agree that Notch shall be entitled to, and you shall pay to Notch, the license fees applicable to each Application or “Powered by Notch” Device contained in such “Powered by Notch” Product, subject to the adjustment in the reasonable discretion of Notch.
2.10 Delivery of License Fees . You shall remit payment for all sales to Notch within thirty (30) days of the end of each calendar month. Failure to remit such payment shall be cause for immediate termination of this Agreement and any applicable license by Notch.
2.11 Books and Records . In the event you undertake any sales outside of the Notch Sore, you shall provide to Notch, on or before the thirtieth (30th) day following each calendar quarter, complete and accurate statements, certified by your chief financial officer, CEO or President as accurate, showing the number, description and price of all “Powered by Notch” Devices, “Powered by Notch” Software, “Powered by Notch” Products or bundles of “Powered by Notch” Devices or “Powered by Notch” Software with any Notch Sensors or Notch Software, that were sold during the preceding calendar quarter, together with the same information for any returns made during the preceding calendar quarter. Such statement shall be furnished to Notch whether or not any sales have been shipped during the preceding calendar quarter. You shall keep accurate books of account and records covering all transactions related to sales hereunder. Notch and its duly authorized representatives, on due notice, shall have the right, at Notch r’s sole cost, at least once a year during normal business hours and upon no less than five (5) business days prior notice, to examine said books of account and records, and shall have free and full access thereto for said purposes and for the purpose of making any copies and/or extracts.
2.11. Restrictions. The license granted to you in Section 2.1 is subject to the following restrictions, as well as others listed in this Agreement:
2.2.1. Your Application may not be a Specialized Application.
2.2.2. You may not, directly or indirectly, publish, post or otherwise make available the Notch Redistributables other than as compiled with, incorporated into, or packaged with, your Application or Device.
2.2.3. You may not, and may not enable others to, distribute the Non-Redistributable Materials.
3. Acknowledgment and Waiver. You acknowledge the SDK may allow you to develop Applications or Devices that involve physical motions, physical training regimes, or other types of training and development. If you elect to use the SDK in such a way, you must take steps to design and test your Applications or Devices to ensure that your Applications Devices do not present risks of personal injury or death, property damage, or other losses. Notch Sensors, the Notch Software, the Notch Redistributables and other software in the SDK may not always function as intended. You must design your Applications and Devices so that any failure of Notch Sensors, the Notch Software, a Notch Redistributable and/or such other software does not cause personal injury or death, property damage, or other losses. If you choose to use the SDK, (i) you assume all risk that use of Notch Sensors, the Notch Software, the Notch Redistributables and/or such other software by you or by any others causes any harm or loss, including to the end users of your Applications or Devices or to third parties, (ii) you hereby waive, on behalf of yourself and your Authorized Users, all claims against Notch and its affiliates related to such use, harm or loss (including, but not limited to, any claim that Notch Sensors, the Notch Software, a Notch Redistributable or such other software is defective), and (iii) you agree to hold Notch and its affiliates harmless from such claims.
4. Confidentiality and Privacy
4.1. Beta Software etc. Obligations. You acknowledge and agree that Notch may share alpha or beta software or hardware with you that it identifies as non-public. If so, you agree not to disclose such software or hardware to others without the prior written consent of Notch until the time, if any, it is made public by Notch, and to use such software or hardware only for the purposes expressly permitted by this Agreement.
4.2. Notch Use of Assets. Subject to the terms and conditions of this Agreement, you grant to Notch and its affiliates a non-exclusive, worldwide and royalty-free limited license to use, reproduce, display, perform, publish and distribute screenshots, elements, assets, photographic, graphic or video reproductions or fragments of your Application or Device in any medium or media, solely for purposes of promotion of your Application, Device or of Notch and its technology and business. This license will terminate if we terminate this Agreement, or, if you terminate it, if you inform us you have terminated it, except that in both cases the license will continue after termination with respect to any materials we created and first distributed prior to our termination or your notice of termination to us.
5. Ownership and Feedback.
5.1. Ownership. Except for the license rights granted by you in Sections 4.2 and 5.2, the license fees set forth in Sections 2.7 through 2.9, other license rights agreed between the parties, and Notch’s ownership of the Notch Software, the Notch store, the Notch Sensors, and the Notch Redistributables, Notch agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of your Applications or Devices, including any intellectual property rights which subsist in those Applications or Devices. As between Notch and you, Notch owns all right, title and interest, including all intellectual property rights, in and to the SDK, the Notch Software, the Notch Sensors, and the Notch Redistributables, other than any third party software or materials incorporated in the SDK, and you agree not to contest Notch’s ownership of any of the foregoing.
5.2. Feedback. You may (but are not required to) provide feedback, comments and suggestions (collectively, “Feedback ”) to Notch. You hereby grant to Notch a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose.
6. Your Obligations and Warranties. In addition to your other obligations under this Agreement, you warrant and agree that:
6.1. You are at least 18 years of age and have the right and authority to enter into this Agreement on your own behalf and that of your Authorized Users, or if you are entering into this Agreement on behalf of your company or organization, you have the right and authority to legally bind your company or organization and its Authorized Users.
6.2. You will use the SDK only in accordance with all accompanying documentation, in the manner expressly permitted by this Agreement, and your use of the SDK, and the marketing, sales and distribution of your Application and Device, will be in compliance with all applicable laws and regulations and all U.S. and local or foreign export and re-export restrictions applicable to the technology and documentation provided under this Agreement (including privacy and data security laws and regulations), and you will not develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act.
7. Agreement and Development Program. We reserve the right to change this Agreement, the SDK or the “Powered by Notch” development and licensing program at any time in our discretion. Notch may require that you either accept and agree to the new terms of this Agreement, or, if you do not agree to the new terms, cease or terminate your use of the SDK. Your continued use of the SDK after changes to this Agreement take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop using the SDK and terminate this Agreement. Any termination of this Agreement by you under this Section 7 (and only this Section 7) will not affect your right, subject to your continued compliance with your obligations under this Agreement, to continue to distribute versions of your Application or Device created and first distributed before termination, and will not affect the right of your End Users to continue using such versions of your Application or Device, both of which rights will survive termination.
8. Term and Termination.
8.1. Term. This Agreement will continue to apply until terminated by either you or Notch as set out below.
8.2. Termination by You. If you want to terminate this Agreement, you may terminate it by uninstalling and destroying all copies of the SDK that are in the possession, custody or control of you, your Authorized Users and your organization.
8.3. Termination by Notch. Notch may at any time, terminate this Agreement with you for any reason or for no reason in Notch’s sole discretion, including as a result of non-compliance by you with the restrictions in Section 1.2 or Section 2, or for other reasons.
8.4. Effect of Termination. Upon termination of this Agreement, all rights granted to you under this Agreement will immediately terminate and you must immediately cease all use and destroy all copies of the SDK in your and your Authorized Users’ possession, custody or control, and, except as specifically set out in Section 9, cease your distribution of Applications, Devices or Products. Sections 1.2, 2.1, 2.2, 4, 5.1, 5.2, 6, 8.4, 9 and 10 - 12, and the Definitions exhibit, will survive termination of this Agreement. Termination of this Agreement will not affect the right of your End Users who have downloaded your Application or purchased “Powered by Notch” Devices associated with your Application prior to termination to continue using it.
9. Indemnification. You agree to indemnify, hold harmless and, at Notch’s option, defend Notch and its affiliates and their respective officers, directors, employees, agents, and representatives harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable attorneys’ fees) incurred by them arising out of or relating to any third party claim (a) with respect to your Application, including products liability, privacy, or intellectual property infringement claims, or (b) based upon your negligence or willful misconduct or any breach or alleged breach of your representations, warranties, and covenants under this Agreement. In no event may you enter into any settlement or like agreement with a third party that affects Notch rights or binds Notch in any way, without the prior written consent of Notch.
10. Warranty Disclaimer.
THE SDK, THE Notch Sensors, the notch Software AND THE Notch Redistributables ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Notch, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SDK, THE Notch Sensors, THE Notch Software AND THE Notch Redistributables, INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND Notch SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE. Notch DOES NOT WARRANT THAT THE SDK, THE Notch Sensors, THE Notch Software OR THE Notch Redistributables WILL BE ERROR-FREE OR THAT THEY WILL WORK WITHOUT INTERRUPTION.
11. Limitation of Liability.
IN NO EVENT WILL Notch’s LIABILITY, OR THOSE OF ITS SUPPLIERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE SDK EXCEED ONE THOUSAND DOLLARS. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, OR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
12.1. Assignment. You may not assign this Agreement without the prior written consent of Notch. Any assignment without such consent is void and of no effect. Notch may assign this Agreement without your consent in connection with (a) a merger or consolidation of Notch, (b) a sale or assignment of substantially all its assets, or (c) any other transaction which results in another entity or person owning substantially all of the assets of Notch. In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
12.2. Waiver; Severability. The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
12.3. Reservation. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied, are granted by Notch, by implication, estoppel, or otherwise. The software in the SDK is licensed, not sold.
12.4. Export Restrictions. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use.
12.5. Governing Law and Jurisdiction. This Agreement will be exclusively governed by and construed under the laws of the State of New York, without reference to or application of rules governing choice of laws. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York and you hereby consent to such jurisdiction. However, Notch may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over you or your Authorized Users, to seek injunctive relief.
12.6. Relationship of the Parties. This Agreement does not create any agency, partnership, or joint venture relationship between Notch and you. This Agreement is for the sole benefit of Notch and you (and indemnified parties), and no other persons will have any right or remedy under this Agreement.
12.7. Notice. The address for notice to Notch under this Agreement is:
Notch Interfaces Inc.
630 Flushing Avenue
Brooklyn NY 11206
Attention: Developer Relations
Notch may provide you notice under this Agreement by email or other electronic communication or by posting communications to its development community on the Notch developer portal. You consent to receive such notices in any of the foregoing manners and agree that any such notices by Notch will satisfy any legal communication requirements.
12.8. Entire Agreement. This Agreement is the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter.
Whenever capitalized in this Agreement:
“Authorized Users” means your employees and contractors, members of your organization or, if you are an educational institution, your faculty, staff and registered students, who (a) have a demonstrable need to know or use the SDK in order to develop and test Applications or Devices on your behalf and (b) each have written and binding agreements with you to protect against the unauthorized use and disclosure of the SDK consistent with the terms and conditions of this Agreement. Authorized Users do not include End Users.
“End User” means your end user customer(s) or licensee(s).
“Notch” “we” or “us” means Notch Interfaces Inc., a Delaware corporation with a principal place of business at 630 Flushing Avenue, Brooklyn, New York, 11206, USA.
“Notch Sensors” means the Notch motion capture sensors (“notches”), wearable devices that form a wireless sensor network, collect and process motion data from onboard sensors for reconstruction of user’s movement data in the shape of animated 3D models or for export to applications and programs.
“Notch Redistributables” means any .lib code, .dll files, .so files, sample code, or other materials we specifically designate in the SDK as made available for incorporation into or distribution with Applications or Devices.
“Notch Software” means the Notch core services application and related applications that interact with Notch Sensors and an operating system to make motion control functionality available to Applications, and includes any Updates thereto.
“Non-Redistributable Materials” means the Notch Software, and any other code, files or materials that are not specifically designated in the SDK as made available for incorporation into Applications or Devices or that are specifically designated in the SDK as not subject to distribution.
“‘Powered by Notch’ Devices” means devices, accessories, straps, mounts, clothing, and other hardware items that are approved through the “Powered by Notch” program.
“‘Powered by Notch’ Products” means bundled packages that include “Powered by Notch” Devices or “Powered by Notch” Applications that are approved through the “Powered by Notch” program. For example, a snowboarding training kit sold as a package with Notch Sensors, a Notch dock and “Powered by Notch” Device for mounting to the snowboard with “Powered by Notch” Applications packaged together.
“‘Powered by Notch’ Software” means Applications that are approved through the “Powered by Notch” program.
“SDK” means, collectively, the Notch Redistributables, tools, APIs, sample code, software, documentation, other materials and any updates to the foregoing that may be provided or made available to you by Notch in connection with this Agreement, via the Notch developer portal or otherwise for use in connection with the Notch development program to develop Applications.
“Specialized Application” means an Application which is: (i) sold, licensed, leased, or otherwise disposed of for a list price of more than US$1,500 or local equivalent, or more than US$500 per year or local equivalent if on a subscription, lease or similar basis; or (ii) sold, licensed, leased or otherwise disposed of as part of, or for use with, another application, system, machine or device (other than a personal computer), having a list price of more than US$1,500 or local equivalent, or more than US$500 per year or local equivalent if on a subscription, lease or similar basis; or (iii) designed for use, or that is primarily used, with or for control, whether direct or indirect, of industrial, commercial, or military equipment..
“Updates” means updates, upgrades, modifications, enhancements, revisions, new releases or new versions to the SDK that Notch may make available to you in connection with this Agreement.
Other capitalized terms used in this Agreement have the meaning given them elsewhere in this Agreement.