NETGEAR Developer License Agreement
Please read this NETGEAR Developer License Agreement (“Agreement”) before clicking the “Agree” button at the end of this Agreement. By clicking on the “Agree” button, you are agreeing to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, click “Disagree” and you will not be a party to this Agreement.
Definitions. Whenever capitalized in this Agreement, the following terms shall have the following meanings:
Documentation: Any technical or other specifications or documentation that NETGEAR may provide to You for use in connection with the NETGEAR SDK.
EULA: Has the meaning set forth in Section 3 below.
FOSS (Free and Open Source Software): Any software that is subject to terms that, as a condition of use, copying, modification or redistribution, requires all or part of such software and/or derivative works thereof to be disclosed or distributed in source code form and (i) to be licensed for the purpose of making derivative works and/or (ii) to be redistributed, in whole or in relevant part, free of charge. Examples of such license include, without limitation, software distributed under the GNU General Public License, GNU Lesser/Library GPL, Mozilla PL, or permissive (e.g., BSD) license.
NETGEAR: NETGEAR Inc., a Delaware corporation with its principal place of business at 350 East Plumeria Dr, San Jose CA 95134, United States and NETGEAR Subsidiaries.
NETGEAR SDK (software development kit): Any documentation, software (including Control Point) (source code and object code), applications, sample code, simulator, tools, libraries, APIs, data, files, and materials that may be provided by NETGEAR for use by You in connection with Your Product development, and includes any Updates that may be provided by NETGEAR to You pursuant to this Agreement.
Product: A software program under Your own trademark or brand, and for specific use with NETGEAR ReadyNAS line of products. The Product will include any additional features, functionality, content, subscriptions, or services sold by You from within the Product.
Term: The Term of this Agreement shall be effective as of the date You accept this Agreement and will continue until terminated as set forth herein in Section 6.
Updates: Bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the NETGEAR SDK, or to any part of the NETGEAR SDK, that are provided by NETGEAR to You.
You and Your: The person(s) or legal entity granting and exercising rights under this Agreement.
1. Internal Use License and Restrictions for NETGEAR SDK
1.1 Subject to the terms and conditions of this Agreement, NETGEAR hereby grants You during the term of this Agreement, a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to:
(a) Install a reasonable number of copies of the NETGEAR SDK on computers owned or controlled by You, to be used internally for the sole purpose of developing or testing Products;
(b) Make and distribute a reasonable number of copies of the Documentation for internal use only and for the sole purpose of developing or testing Products.
1.2 From time to time during the Term, NETGEAR may provide You with pre-release versions of the NETGEAR SDK. Such pre-release NETGEAR SDK should not be relied upon to perform in the same manner as a final-release product, nor should the pre-release SDK be used with data that is not sufficiently and regularly backed up. The pre-release SDK may also include features, functionality or APIs for services that are not yet available.
1.3 You agree to retain and reproduce in full the NETGEAR copyright, disclaimers and other proprietary notices (as they appear in the NETGEAR SDK and related services and Documentation provided) in all copies of the NETGEAR SDK and Documentation that You are permitted to make under this Agreement.
1.4 NETGEAR retains all rights, title, and interest in and to the NETGEAR SDK and any Updates it may make available to You under this Agreement. You agree to cooperate with NETGEAR to maintain NETGEAR’s ownership of the NETGEAR SDK.
1.5 Except as otherwise set forth in this Agreement, You are not licensed to, and You agree not to, rent, lease, lend, upload to or host on any website or server, sell, redistribute, or sublicense the NETGEAR SDK, in whole or in part, or to enable others to do so. You may not use the NETGEAR SDK for any purpose not expressly permitted by this Agreement. You may not and You agree not to, or to enable others to, copy (except as expressly permitted under this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create derivative works of the NETGEAR SDK or any part thereof, or any other NETGEAR software, services or technology (except as and only to the extent any foregoing restrictions are prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components or sample code included with the NETGEAR SDK).
If You breach any of the foregoing restrictions, You agree and acknowledge that You may be subject to prosecution and damages. All licenses not expressly granted in this Agreement are reserved by NETGEAR and no other licenses, immunity or rights, whether express or implied, are granted by NETGEAR by implication, estoppel, or otherwise.
This Agreement does not grant You any rights to use any trademarks, logos or service marks belonging to NETGEAR. If You make reference to any NETGEAR products or technology or use NETGEAR’s trademarks, You agree to comply with the published NETGEAR trademark guidelines available at http://countries.netgear.com/About/Trademarks.aspx, as such guidelines may be modified by NETGEAR from time to time.
1.6 NETGEAR may extend, enhance, or otherwise modify the NETGEAR SDK provided hereunder at any time without notice, but NETGEAR shall not be obligated to provide You with any Updates. If Updates are made available by NETGEAR, the terms of this Agreement will govern such Updates, unless the Update is accompanied by a separate license in which case the terms of that license will govern. NETGEAR is not obligated to provide any maintenance, technical or other support for the NETGEAR SDK. You acknowledge that NETGEAR has no express or implied obligation to announce or make available any Updates to the NETGEAR SDK or to any services to anyone in the future. Should an Update be made available, it may have APIs, features, services or functionality that are different from those found in the NETGEAR SDK licensed hereunder.
1.7 As a condition to using the NETGEAR SDK, You agree that:
(a) You will only use the NETGEAR SDK for the purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws, rules, and regulations;
(b) You will not use the NETGEAR SDK for any unlawful or illegal activity, nor to develop any Product which would commit or facilitate the commission of a crime, or other tortious, unlawful or illegal act;
(c) Your Product and Product Information does not and will not violate, misappropriate, or infringe any NETGEAR or third-party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights;
(d) You will not, through use of the NETGEAR SDK create any Product or other program that would, or would enable others to, disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms within the NETGEAR SDK, any services or other NETGEAR software or technology; and
2. NO WARRANTY
The NETGEAR SDK may contain inaccuracies or errors that could cause failures or loss of data and it may be incomplete. NETGEAR or its agents or licensors (“NETGEAR ENTITIES”) may provide or make available through the NETGEAR SDK certain web-based applications, certificate-issuance services, or other services for Your use (collectively, the “Services”). The NETGEAR ENTITIES reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the NETGEAR ENTITIES be liable for the removal of or disabling of access to any such Services. The NETGEAR ENTITIES may also impose limits on the use of or access to certain Services, in any case and without notice or liability. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE NETGEAR SDK AND ANY OTHER SERVICES OR PRODUCTS PROVIDED TO YOU BY THE NETGEAR ENTITIES RELATED TO THE SDK IS AT YOUR SOLE RISK AND THAT YOU INCUR ALL RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT OF SUCH. THE NETGEAR SDK AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. THE NETGEAR ENTITIES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE NETGEAR SDK AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, UPTIME, PROFITS, TIMELINESS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
THE NETGEAR ENTITIES DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE NETGEAR SDK AND SERVICES, OR OTHER PRODUCTS PROVIDED BY THE NETGEAR ENTITIES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE NETGEAR SDK OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS OR ERRORS IN THE NETGEAR SDK OR SERVICES WILL BE CORRECTED, OR THAT THE NETGEAR SDK, SERVICES OR OTHER PRODUCTS PROVIDED BY THE NETGEAR ENTITIES WILL BE COMPATIBLE WITH FUTURE NETGEAR PRODUCTS, SERVICES OR SOFTWARE, OR THAT ANY INFORMATION STORED OR TRANSMITTED THROUGH THE NETGEAR SDK OR SERVICES WILL NOT BE LOST, CORRUPTED OR DAMAGED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A NETGEAR ENTITY WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SHOULD THE NETGEAR SDK, SERVICES OR OTHER PRODUCTS PROVIDED BY NETGEAR OR ITS AGENTS OR LICENSORS PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THE NETGEAR ENTITES DO NOT GUARANTEE THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF DATA OR INFORMATION DISPLAYED BY THE SDK OR SERVICES. YOUR USE OF THE NETGEAR SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT ARISES FROM SUCH USE.
3. Ownership and End-User Licensing
3.1 The parties acknowledge and agree that NETGEAR shall not acquire any ownership interest in or to any of the Products or Product Information, and title, risk of loss, responsibility for, and control over the Products shall, at all times, remain with You. NETGEAR may not use any of the Products or Product Information for any purpose, or in any manner, except as specifically authorized in this Agreement.
3.2 You grant to the end-user a non-exclusive, worldwide, and perpetual license to perform, display, and use the Product on the NETGEAR device. If You choose, You may include a separate EULA in Your Product that will govern the user’s rights to the Product.
3.3 You hereby acknowledge that the EULA for each of the Products is solely between You and the end-user and conforms to applicable law, and NETGEAR shall not be responsible for, and shall not have any liability whatsoever under, any EULA or any breach by You or any end-user of any of the terms and conditions of any EULA.
4. Responsibility and Liability
4.1 NETGEAR shall have no responsibility for the installation and/or use of any of the Products by any end-user. You shall be solely responsible for any and all Product warranties, end-user assistance and product support with respect to each of the Products. You agree that You are solely responsible for (and that NETGEAR has no responsibility to You or to any third party for) any Products You distribute and for the consequences of Your actions (including any loss or damage which NETGEAR may suffer) by doing so.
4.2 You agree that You are solely responsible for (and that NETGEAR has no responsibility to You or to any third party for) any breach of Your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which NETGEAR or any third party may suffer) of any such breach.
4.3 You shall be solely responsible for, and NETGEAR shall have no responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, or attributable to, the Products and/or the use of those Products by any end-user, including, but not limited to: (i) claims of breach of warranty, whether specified in the EULA or established under applicable law; (ii) product liability claims; and (iii) claims that any of the Products and/or the end-user’s possession or use of those Products infringes the copyright or other intellectual property rights of any third party.
5. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT NOT PROHIBITED BY LAW, NETGEAR, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, WHETHER OR NOT NETGEAR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NETGEAR’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00).
6. Term and Termination of this Agreement
6.1 Without prejudice to any other rights or remedies available to NETGEAR, NETGEAR may at any time, terminate this Agreement with You if:
(A) You have breached any provision of this Agreement; or
(B) NETGEAR is required to do so by law; or
(C) You, at any time during the Term, commence an action for patent infringement or any other material legal proceeding against NETGEAR; or
(D) You become insolvent, fail to pay Your debts when due, dissolve or cease to do business; or
(E) You file for bankruptcy, or have filed against You a petition in bankruptcy; or
(F) You engage, or encourage others to engage, in any misleading, fraudulent, improper, unlawful or dishonest act relating to this Agreement; or
(G) Your Product or Products is/are not authorized for export to one or more of the countries designated by You, in accordance with the Export Administration Regulations; or
(H) A Product and/or any end-user’s possession and/or use of the Product, infringes patent, copyright, trademark, trade secret or other intellectual property rights of any third party; or
(I) The distribution and/or use of a Products violates any applicable law in any country; or
(J) You fail to accept any new Agreement terms; or
(K) NETGEAR makes a request via public announcement or press release to stop using the copies of the SDK.
6.2 Either party may terminate this Agreement for its convenience, for any reason or no reason, effective 30 days after providing the other party with written notice of its intent to terminate.
6.3 Upon the termination of this Agreement for any reason, You agree to immediately cease all use of the NETGEAR SDK and services and erase and destroy all copies, full or partial, of the NETGEAR SDK and any information pertaining to the services (including Your Product ID), any NETGEAR Brand Features, and all copies of NETGEAR confidential information in Your possession or control. At NETGEAR’s request, You agree to provide written certification of such destruction to NETGEAR. Upon the expiration of the Term, all Products and Product Information in NETGEAR’s possession or control shall be deleted or destroyed within a reasonable time thereafter, excluding any archival copies maintained in accordance with NETGEAR’s standard business practices or required to be maintained by applicable law, rule or regulation. The following provisions shall survive any termination of this Agreement: Section 2 (No Warranty), Section 3 (Ownership and End-User Licensing), Section 4 (Responsibility and Liability), Section 5 (Limitation of Liability), this Section 6.3 (survival provision / destruction of NETGEAR property), Section 7 (General Legal Terms).
NETGEAR will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy NETGEAR may have, now or in the future.
7. General Legal Terms
7.1 This Agreement constitutes the whole legal agreement between You and NETGEAR and governs Your use of the SDK.
7.2 You agree that if NETGEAR does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which NETGEAR has the benefit of under any applicable law), this will not be taken to be a formal waiver of NETGEAR’s rights and that those rights or remedies will still be available to NETGEAR.
7.3 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
7.4 You acknowledge and agree that each member of the group of companies of which NETGEAR is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than the foregoing, no other person or company shall be third party beneficiaries to this Agreement.
7.5 EXPORT RESTRICTIONS. THE NETGEAR SDK MAY BE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF THE NETGEAR SDK. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS AND END USE.
7.6 The rights granted in this Agreement may not be assigned or transferred by You without the prior written approval of NETGEAR. You shall not delegate Your responsibilities or obligations under this Agreement without the prior written approval of NETGEAR. Any attempted assignment, transfer or delegation in contravention of this Section 7.6 shall be null and void.
7.7 This Agreement, and Your relationship with NETGEAR under this Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and NETGEAR agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from this Agreement. Notwithstanding the foregoing, You agree that NETGEAR shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
7.8 This Agreement will not be construed as creating any agency, partnership, joint venture, fiduciary duty, or any other form of legal association between You and NETGEAR, and You will not represent to the contrary, whether expressly, by implication, appearance, or otherwise. Nothing in this Agreement shall give You any authority to act or make representations or commitments on behalf of NETGEAR or to create any contractual liability to a third party (including, without limitation, end-users) on behalf of NETGEAR.
7.9 Nothing in this Agreement will impair NETGEAR’s right to develop, acquire, license, market, promote, or distribute products or technologies that perform same or similar functions as, other otherwise compete with, Your Products or any other products or technologies that You may develop, produce, market, or distribute.
7.10 Any notices relating to this Agreement shall be in writing. Notices will be deemed given by NETGEAR when sent to You at the email address or mailing address You provide when you sign up to receive a copy of the NETGEAR SDK. All notices permitted or required under this Agreement to NETGEAR shall be delivered by personal delivery, by recognized express courier (e.g., FedEx or UPS) providing proof of delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit in the mail. Notices shall be sent to the NETGEAR Legal Department at the address in the Definition section of the Agreement.