45 lines
9.2 KiB
Markdown
45 lines
9.2 KiB
Markdown
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# COREMARK® ACCEPTABLE USE AGREEMENT
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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.
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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”).
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## Article 1 – License Grant.
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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.
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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.
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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.
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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.
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## Article 2 – Ownership.
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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.
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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.
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## Article 3 – Indemnification.
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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).
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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.
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## Article 4 – Miscellaneous.
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4.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
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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.
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4.3. Assignment. Licensee’s rights hereunder are non-assignable, and may not be sublicensed.
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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.
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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.
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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.
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4.7. Amendment; Waiver. This Agreement may not be amended, nor may any rights under it be waived, except in writing by Licensor.
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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
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permitted by law, and the remaining provisions of this Agreement shall remain in effect.
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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.
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