This ACCEPTABLE USE AGREEMENT (this “Agreement”) is offered by Embedded Microprocessor Benchmark Consortium, a California nonprofit corporation (“Licensor”), to users of its CoreMark® software (“Licensee”) exclusively on the following terms.
Licensor offers benchmarking software (“Software”) pursuant to an open source license, but carefully controls use of its benchmarks and their associated goodwill. Licensor has registered its trademark in one of the benchmarks available through the Software, COREMARK, Ser. No. 85/487,290; Reg. No. 4,179,307 (the “Trademark”), and promotes the use of a standard metric as a benchmark for assessing the performance of embedded systems. Solely on the terms described herein, Licensee may use and display the Trademark in connection with the generation of data regarding measurement and analysis of computer and embedded system benchmarking via the Software (the “Licensed Use”).
1.1. License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a personal, non-exclusive, royalty-free, revocable right and license to use and display the Trademark during the term of this Agreement (the “Term”), solely and exclusively in connection with the Licensed Use. During the Term, Licensee (i) shall not modify or otherwise create derivative works of the Trademark, and (ii) may use the Trademark only to the extent permitted under this License. Neither Licensee nor any affiliate or agent thereof shall otherwise use the Trademark without the prior express written consent of Licensor, which may be withheld in its sole and absolute discretion. All rights not expressly granted to Licensee hereunder shall remain the exclusive property of Licensor.
1.2. Modifications to the Software. Licensee shall not use the Trademark in connection with any use of a modified, derivative, or otherwise altered copy of the Software.
1.3. Licensor’s Use. Nothing in this Agreement shall preclude Licensor or any of its successors or assigns from using or permitting other entities to use the Trademark, whether or not such entity directly or indirectly competes or conflicts with Licensee’s Licensed Use in any manner.
1.4. Term and Termination. This Agreement is perpetual unless terminated by either of the parties. Licensee may terminate this Agreement for convenience, without cause or liability, for any reason or for no reason whatsoever, upon ten (10) business days written notice. Licensor may terminate this Agreement effective immediately upon notice of breach. Upon termination, Licensee shall immediately remove all implementations of the Trademark from the Licensed Use, and delete all digitals files and records of all materials related to the Trademark.
2.1. Ownership. Licensee acknowledges and agrees that Licensor is the owner of all right, title, and interest in and to the Trademark, and all such right, title, and interest shall remain with Licensor. Licensee shall not contest, dispute, challenge, oppose, or seek to cancel Licensor’s right, title, and interest in and to the Trademark. Licensee shall not prosecute any application for registration of the Trademark. Licensee shall display appropriate notices regarding ownership of the Trademark in connection with the Licensed Use.
2.2. Goodwill. Licensee acknowledges that Licensee shall not acquire any right, title, or interest in the Trademark by virtue of this Agreement other than the license granted hereunder, and disclaims any such right, title, interest, or ownership. All goodwill and reputation generated by Licensee’s use of the Trademark shall inure to the exclusive benefit of Licensor. Licensee shall not by any act or omission use the Trademark in any manner that disparages or reflects adversely on Licensor or its Licensed Use or reputation. Licensee shall not take any action that would interfere with or prejudice Licensor’s ownership or registration of the Trademark, the validity of the Trademark or the validity of the license granted by this Agreement. If Licensor determines and notifies Licensee that any act taken in connection with the Licensed Use (i) is inaccurate, unlawful or offensive to good taste; (ii) fails to provide for proper trademark notices, or (iii) otherwise violates Licensee’s obligations under this Agreement, the license granted under this Agreement shall terminate.
3.1. Indemnification Generally. Licensee agrees to indemnify, defend, and hold harmless (collectively “indemnify” or “indemnification”) Licensor, including Licensor’s members, managers, officers, and employees (collectively “Related Persons”), from and against, and pay or reimburse Licensor and such Related Persons for, any and all third-party actions, claims, demands, proceedings, investigations, inquiries (collectively, “Claims”), and any and all liabilities, obligations, fines, deficiencies, costs, expenses, royalties, losses, and damages (including reasonable outside counsel fees and expenses) associated with such Claims, to the extent that such Claim arises out of (i) Licensee’s material breach of this Agreement, or (ii) any allegation(s) that Licensee’s actions infringe or violate any third-party intellectual property right, including without limitation, any U.S. copyright, patent, or trademark, or are otherwise found to be tortious or criminal (whether or not such indemnified person is a named party in a legal proceeding).
3.2. Notice and Defense of Claims. Licensor shall promptly notify Licensee of any Claim for which indemnification is sought, following actual knowledge of such Claim, provided however that the failure to give such notice shall not relieve Licensee of its obligations hereunder except to the extent that Licensee is materially prejudiced by such failure. In the event that any third-party Claim is brought, Licensee shall have the right and option to undertake and control the defense of such action with counsel of its choice, provided however that (i) Licensor at its own expense may participate and appear on an equal footing with Licensee in the defense of any such Claim, (ii) Licensor may undertake and control such defense in the event of the material failure of Licensee to undertake and control the same; and (iii) the defense of any Claim relating to the intellectual property rights of Licensor or its licensors and any related counterclaims shall be solely controlled by Licensor with counsel of its choice. Licensee shall not consent to judgment or concede or settle or compromise any Claim without the prior written approval of Licensor (whose approval shall not be unreasonably withheld), unless such concession or settlement or compromise includes a full and unconditional release of Licensor and any applicable Related Persons from all liabilities in respect of such Claim.
4.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
4.2. No Third-Party Beneficiaries. Except for the rights of Related Persons under Article 3 (Indemnification), there are no third-party beneficiaries to this Agreement.
4.3. Assignment. Licensee’s rights hereunder are non-assignable, and may not be sublicensed.
4.4. Equitable Relief. Licensee acknowledges that the remedies available at law for any breach of this Agreement will, by their nature, be inadequate. Accordingly, Licensor may obtain injunctive relief or other equitable relief to restrain a breach or threatened breach of this Agreement or to specifically enforce this Agreement, without proving that any monetary damages have been sustained, and without the requirement of posting of a bond prior to obtaining such equitable relief.
4.5. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its conflict of law principles.
4.6. Attorneys’ Fees. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover its reasonable attorneys’ fees and other reasonable costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
4.7. Amendment; Waiver. This Agreement may not be amended, nor may any rights under it be waived, except in writing by Licensor.
4.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
4.9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Version 2.0, January 2004
http://www.apache.org/licenses/
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"Licensor" shall mean the copyright owner or entity authorized by the copyright owner that is granting the License.
"Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity.
"You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this License.
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"Object" form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types.
"Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below).
"Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.
"Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution."
"Contributor" shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work.
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Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form.
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Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.
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Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions:
You must give any other recipients of the Work or Derivative Works a copy of this License; and You must cause any modified files to carry prominent notices stating that You changed the files; and You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License.
You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License.
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Submission of Contributions. Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions. Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions.
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Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file.
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Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License.
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Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages.
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Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability.
END OF TERMS AND CONDITIONS