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Copyright License Agreement

This COPYRIGHT LICENSE AGREEMENT (the “Agreement”) is a binding contract between you (“Customer,” “Licensee,” “you,” or “your”) and Avnu Alliance, a Delaware nonprofit mutual benefit corporation (“Licensor,” “Avnu,” “we,” or “us”). This Agreement governs your access to and use of the Test Plans.

Avnu has created specifications for interoperable devices and has developed certain test plans for testing devices for compliance with such specifications and other standards (the “Test Plans”).

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE TEST PLANS (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE TEST PLANS YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE TEST PLANS.

1. License.
   • Grant of Rights and Scope of Licensed Use. Subject to and conditioned on Licensee’s compliance with the terms and conditions of this Agreement, in consideration of the fees and Licensee’s other agreements set forth herein, Licensor hereby grants to Licensee during the Term (as defined below) a non-exclusive, non-transferable (except as provided in Section 4), non-sublicensable license solely for Customer’s internal informational and evaluation purposes. Licensee may download only one (1) copy of the Test Plan.
   • Third-Party Rights. Notwithstanding any other provisions of this Agreement to the contrary, nothing in this Agreement will be deemed to be a grant by Licensor of a license, sublicense, or other grant of a right to Licensee to use any third-party rights or any rights under any third-party license that cannot be licensed, sublicensed, or granted without the consent, approval, or agreement of another party, unless such consent, approval, or agreement is first obtained by Licensee.
   • License Restrictions. You shall not, and shall not permit any Authorized Users to, use the Test Plans for any purposes beyond the scope of the use granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Test Plans, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Test Plans except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the Test Plans, in whole or in part; (iv) remove any proprietary notices from the Test Plans; or (v) use the Test Plans in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Test Plans under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Test Plans has been purchased hereunder.
   • Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee under this Agreement. No use by Licensor of the Test Plans in any medium or manner will be deemed to interfere with the limited permissions made to Licensee by Licensor herein.
2. Licensee’s Obligations. Notwithstanding any other provision to the contrary contained in this Agreement:
   • Copyright Notices. Licensee shall ensure that its use of the Test Plans includes all trademark, copyright, and other intellectual property rights notices contained in the original.
   • Compliance with Licensor’s Directions. The Test Plans may be used only in the form and in such manner specifically approved in writing by Licensor in advance.
   • Modifications. Licensee shall not translate, recast, edit, alter, modify, or create any derivative works of the Test Plans.
3. Payment. By clicking on the PURCHASE button, the Customer agrees to the payment terms as described on the Avnu website and will be responsible for the payments made through Customer’s credit card, payment service provider, or bank. Customer is responsible for any and all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority due to the conveyance of rights under this Agreement, if any.

All information that you provide in connection with your purchase from the Avnu website (including your name, address, credit card number, and other identifying information) must be accurate, current, and complete. You agree to pay all charges incurred by you at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes related to your purchases. You understand and agree that we shall have the right to provide any information you submit on or through the Avnu website to third parties for purposes of facilitating the completion of any purchase made by you, on your behalf or through your account. Verification of information may be required prior to the acknowledgment or completion of any purchase. To the extent that Avnu provides other options for payment, such as through corporate check or wire transfer, then these payment options may be subject to additional terms associated with their service providers or banks, however, in each case Customer is responsible for making all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Licensor’s other rights and remedies: (i) Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Licensor for all reasonable costs incurred by Licensor in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Licensor may revoke Customer’s license to the materials. Notwithstanding the above, Licensor may choose not to extend any payment terms to Customer and may condition Customer’s download rights upon advance full payment.

4. Ownership and Protection.
   • Acknowledgment of Ownership. Except for the licenses expressly granted to Licensee in this Agreement, Licensee acknowledges that all right, title, and interest in and to the Test Plans will remain with Licensor. If Licensee acquires any rights in the Test Plans by operation of law or otherwise, Licensee hereby irrevocably assigns such rights to Licensor without further action by either party.
   • Protection of the Test Plans.
     • Notification. Licensee shall, at its sole expense, maintain any copies of the Test Plans within Licensee’s possession, custody, or control under first-class conditions and shall take all then-available measures to protect and safeguard the Test Plans. Licensee shall immediately notify Licensor in writing with reasonable detail of any: (i) actual, suspected, or threatened infringement of the Test Plans; (ii) actual, suspected, or threatened claim that use of the Test Plans infringes the rights of any third party; or (iii) other actual, suspected, or threatened claim to which the Test Plans may be subject.
     • Actions. With respect to any of the matters listed in Section 2(a): (i) Licensor has exclusive control over, and conduct of, all claims and proceedings; (ii) Licensee shall provide Licensor with all assistance that Licensor may reasonably require in the conduct of any claims or proceedings; and (iii) Licensor shall bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.

5. Representations and Warranties.
   • Licensee’s Representations and Warranties. Licensee represents and warrants that:
     • Licensee will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Test Plans or Licensor, or cause confusion as to the ownership of the Test Plans; and
     • The Licensee’s use of the Test Plans will not infringe, misappropriate, or otherwise violate the intellectual property or other rights of any third party or violate any applicable regulation or law.
   • Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
6. Indemnification.
   • Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, permitted assigns, and licensees (each an “Indemnified Party”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Licensors, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) relating to any actual or alleged breach by Licensee of its representations, warranties, covenants, or other obligations hereunder.
   • Indemnification Procedure. The Indemnified Party shall promptly notify Licensee on becoming aware of a Third-Party Claim under this Section 6. Licensee shall promptly assume control of the defense and investigation of the Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with Licensee in connection therewith, in each case, at Licensee’s sole cost and expense. The Indemnified Party may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense. Licensee will not settle any Third-Party Claim without the Indemnified Party’s prior written consent. If Licensee fails or refuses to assume control of the defense of such Third-Party Claim, the Indemnified Party will have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to Licensee, in each case, in such manner and on such terms as the Indemnified Party may deem appropriate. Neither the Indemnified Party’s failure to perform any obligation under this Section 6.2 nor any Indemnified Party’s act or omission in the defense or settlement of any such Third-Party Claim will relieve Licensee of its obligations under this Section 6.2, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result thereof.
7. Term and Termination.
   • Term. The term of this Agreement begins on the Effective Date and continues until terminated. (the “Term”).
   • In addition to any other express termination right set forth in this Agreement:
     • Licensor may terminate this Agreement at any time without cause by providing at least 30 days prior written notice to Licensee.
     • Either party may, by written notice to the other party, terminate with immediate effect this Agreement, without any liability whatsoever, if: (i) a party violates or breaches a material provision of this Agreement, and such breach is not cured by a breaching party within thirty (30) days after breaching party’s receipt of written notice from the non-breaching party specifying the nature of the breach or violation; or (ii) to the extent permitted by law, a voluntary or involuntary petition in bankruptcy or winding up is filed against a party, any proceedings in insolvency or bankruptcy (including reorganization) are instituted against a party, a trustee or receiver is appointed over a party, or any assignment is made for the benefit of creditors of a party.
   • Effect of Termination. On the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to Licensor and Licensee shall immediately discontinue of the Test Plans and cause to be inactivated and erased all digital copies of the Test Plans in its control and possession and return or, at Licensor’s written request, destroy, any tangible copies of the Test Plans.
   • Surviving Rights. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in this Section 7 and Section 3, Section 4, Section 5, Section 6, Section 8, and Section 9.
8. Remedies.
   • No Equitable Relief. Licensee acknowledges and agrees that: (a) monetary damages at law are a fully adequate remedy to compensate Licensee for any breach or threatened breach of this Agreement by Licensor; and (b) an action at law for monetary damages is Licensee’s sole and exclusive remedy for any such breach. No breach by Licensor of this Agreement will entitle Licensee to equitable relief, including specific performance, injunctive relief, rescission, or any other form of equitable remedy. Without limiting the generality of the immediately preceding two sentences, Licensee will not seek equitable relief to rescind this Agreement or seek injunctive relief to enjoin or otherwise restrain or limit the use or other exploitation of the Test Plans or any rights therein.
   • Equitable Relief. Licensee acknowledges that a breach by Licensee of this Agreement may cause Licensor irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Licensor will be entitled to seek equitable relief, including a restraining order, orders for a preliminary or permanent injunction, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Licensor may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
   • Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. General.
   • Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
   • Entire Agreement. This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter.
   • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
   • Assignment. Licensee shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Licensor. Any purported assignment or delegation in violation of this Section 4 is null and void. Licensor may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
   • Choice of Law; Venue. This Agreement and all matters arising out of or relating to this Agreement, including contract, tort, and statutory claims, are governed by, and construed in accordance with, the laws of Delaware, without giving effect to any conflict of laws provisions thereof that would require or permit the application of the laws of a different jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the federal or state courts, in each case located in San Jose, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
   • Relationship of the Parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for nor bind the other party in any manner whatsoever.
   • No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
   • Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
   • Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving party. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
   • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.