Timesys End User License Agreement (“EULA”)

August 1, 2020

Please read this EULA carefully because it is a binding agreement between You and Timesys Corporation, Inc., (“Timesys” or “We”). Party refers to either You or Timesys and Parties refer to You and Timesys.

This End User License Agreement (“EULA”) is a legal agreement between Timesys Corporation (“Timesys”) and You concerning Timesys Software Products, (excluding Open Programs defined in 5.3) licensed hereunder (“Timesys Software”). Clicking the accept icon or otherwise using the Timesys Software constitutes Your agreement with and acceptance of this EULA. If You do not accept this EULA, You will NOT be authorized to use the Timesys Software and may be entitled to a refund of the fees, if any, You paid for the Timesys Software within THIRTY (30) days of receipt. All returns to Timesys will be subject to Timesys then-current return policy. If you are accepting this EULA on behalf of an entity, You agree that You have authority to bind the entity to this EULA.

The terms of this EULA apply to the computer software provided with this Agreement, all updates or upgrades to the software that may be provided later by Timesys as part of any maintenance, technical support, or other services program for the software, unless such update or upgrade comes with separate software license terms, and all accompanying documentation, and utilities.

You automatically agree to Timesys Privacy Statement simply by using or logging into the LinuxLink Website.

Timesys Software constitutes different software products (2.1) and this EULA governs all those products unless certain terms and conditions are superseded by a customer specific EULA. This EULA does not apply to any programs provided to You under an open source license, even if supplied in the same electronic file transmission as the Timesys Software. For example, Linux is subject to the GNU General Public License (“GPL”). Additional programs subject to other open source licenses, referred to herein as Open Programs.

The Timesys Software and Open Programs are separate and distinct programs even if provided within the same electronic file transmission. In addition, other programs subject to other license agreements may also be included within the same electronic transmission. Certain portions of the Timesys Software are subject to the Eclipse Public License (“EPL”) and/or other license terms.

1. WHAT THIS EULA COVERS
   1. Software Products: This EULA applies to our downloadable software products (2.1).
   2. Hosted Products and Services (“HPS”): This EULA does not apply to Timesys Hosted Products and Services, related Support, and Additional Services. The HPS is covered by Timesys Terms of Service (ToS) agreement.
2. HOW TIMESYS SOFTWARE PRODUCTS ARE DELIVERED
   1. LinuxLink is the Timesys web portal for gaining access to downloadable Software Products:
      • TimeStorm – IDE optimized for Embedded Linux development,
      • Desktop Factory – Timesys embedded Linux build system development environment
      • Embedded Board Farm (EBF) – Remote Debugging Infrastructure Tool
      • Test Automation infrastructure tool (TAS)
   2. Your Account:

      You may be required to create an account and specify a password in order to download the software from Timesys LinuxLink website. To create an account, you must be at least 16 years old and you must provide truthful and accurate information about yourself. Don’t try to impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes.

      In some cases, an account may be assigned to you by an administrator, such as your employer or educational institution. Moreover, your administrator may be able to access or disable your account without our involvement.

      You may not share your account with anyone else. Please keep your password confidential, and try not to use it on other websites. If you believe that your account has been compromised at any time, You agree to immediately notify your administrator and Timesys of any unauthorized use of Your account or any other breach of security of which You become aware.

   3. Authorized Use:

      You shall not sell, lease, assign, sublicense or otherwise transfer access to LinuxLink in whole or in part, to any third party. You shall comply with all Timesys reasonable security and other procedures and policies governing access to, and use of, LinuxLink that Timesys notified in writing to You in advance. In case of any discrepancy between Timesys procedures and policies governing access to and use of Timesys Software and this Agreement, this Agreement shall control.

   4. Access:

      You are responsible for obtaining access to LinuxLink and that access may involve third party fees (such as ISP charges). In addition, You must provide and are responsible for all equipment necessary to access the LinuxLink.

   5. Modifications and Termination:

      We reserve the right to modify our LinuxLink website at any time, with or without notice to you. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our LinuxLink at any time.

3. LICENSE GRANT, RESTRICTIONS AND OTHER CONSIDERATIONS
   1. License Grant: Timesys hereby grants You a limited, non-exclusive, non-transferable license to install and use the Timesys Software for which You have paid any applicable fee(s), solely for Your internal use in the development of Your project and /or embedded applications (“Your Application”) for internal use. Depending upon the license type (Seat license or Project License or Floating license), the Timesys Software may be used only (i) by the number of users or (ii) for the Project with certain number of named users for which You have paid a Subscription and/or Software Development License Fee, if applicable. A License may be transferred from one user or Project to another only on a permanent (not temporary) basis. Only Your employees and contractors that agree to this EULA may access or use the Timesys Software. Timesys may offer certain Timesys Software on a “Floating License” basis. If You pay any applicable fee(s) for a Floating License, You shall have the license right to permit the specified number of concurrent users to access and use the Timesys Software.
   2. Restrictions on Timesys Software: Except as expressly set forth above, You may not: (i) use, copy, disclose, distribute, modify, or create derivative works of the Timesys Software; (ii) use the Timesys Software for outsourcing, time-sharing, for the benefit of any third party, or in competition with Timesys; (iii) cause or allow any portion of the Timesys Software to be subject to any open source license except to the extent that such portion is provided to You by Timesys under the terms of such open source license; (iv) decompile, disassemble, or reverse engineer the Timesys Software, or permit any third parties, including end-users of Your Application, to do so; (v) export or import the Timesys Software or Your Application in violation of any applicable U.S. laws or regulations, including U.S. Department of Commerce Export Administration Regulations, or permit any end-user to do so; or (vi) permit end-users to copy, distribute, transfer, modify, or create derivatives of the Timesys Software, except as part of Your Application in a manner consistent with Your obligations as set forth in this EULA.
   3. The license granted to You in this EULA for Timesys Software is contingent upon Your payment to Timesys of the Subscription or License Fees for the Timesys Software, if applicable, in accordance with Timesys pricing policies current as of the date of Your acquisition of the Timesys Software.
   4. License Fees and any applicable Annual Technical Support Fees for Your Timesys Software use are due and payable in advance of Your use of the Timesys Software, unless other payment terms are mutually agreed by both parties in writing.
   5. Timesys reserves the right to charge interest at a rate of 1.5% per month or the highest rate allowable by law on any undisputed past due balances.
   6. Any applicable License Fees are exclusive of any applicable taxes. You agree that You shall be responsible for the payment of all taxes related to the Timesys Software and this EULA, other than taxes based upon Timesys’ income.
   7. Trial Software: If the Timesys Software is used for evaluation purpose only then the License granted hereunder is a limited, non-exclusive, non-transferable, revocable license to install and use Timesys Software solely during the License Period for internal review and testing of the Trial Software. This License shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall return to Timesys, or certify as destroyed, all Trial Software and related documentation. “License Period” means (subject to earlier termination as set forth in Section 8 below) the period of time beginning with the date upon which You first install the Trial Software and ending upon the earliest occurrence of any of the following events: (i) You purchase a subscription or Development License and technical support for Timesys Software; or (ii) End date of the agreed upon trial period.
   8. Pre-Release Software: If the Timesys Software has not yet been made generally available for licensing by the public (“Pre-Release Software”), then the license granted hereunder is a limited, non-exclusive, non-transferable, revocable license to install and use the Pre-Release Software solely during the License Period for internal review and testing of the Pre-Release Software. This license grant shall terminate immediately and without further notice upon expiration of the License Period, at which time You shall return to Timesys, or certify as destroyed, all Pre-Release Software and related documentation. “License Period” means (subject to earlier termination as set forth in Section 8 below) the period of time beginning with the date upon which You first install Pre-Release Software and ending upon the earliest occurrence of any of the following events: (i) the Pre-Release Software is released and made generally available for licensing by the public; or (ii) Timesys notifies You of its intent to cancel this EULA as it applies to Pre-Release Software (in which case the License Period will end thirty (30) days after such notification).
   9. Export Compliance: In addition, You hereby certify that You: (a) are not a citizen of, nor located in, any of the countries prohibited from receiving United States (“US”) exports, or prohibited from transacting with US citizens pursuant to US embargoes or other sanctions; (b) are not prohibited from receiving US exports by being listed on any export denial list published by the: US State Department – Directorate of Defense Trade Controls, US Treasury Department – Office of Foreign Assets Control, or US Department of Commerce - Bureau of Industry and Security; and, (c) will not export or re-export US-origin products or technology obtained from Timesys in violation of US export regulations.
   10. Records/Audit: You acknowledge that Timesys has the right, but not the obligation, to periodically audit Your use of the Timesys Software to ensure Your compliance with these Terms and applicable laws. You agree to immediately notify Timesys of any unauthorized use of the Timesys Software, Your account, or any other breach of security of which You become aware. You shall maintain complete and accurate records of each of Your employees and contractors that use the Timesys Software for a period of three (3) years. One (1) time per year and subject to a thirty (30) business days advance notice, Timesys may inspect such records upon request at any time during Your normal business hours without interfering with Your normal business operations, during the term of this EULA and for three years thereafter at Timesys sole cost.
   11. Additional Consideration – Publicity: In further consideration of the licenses granted hereunder, You agree to permit Timesys to use Your name and trademarks to identify You as a Timesys customer on Timesys website(s), in Timesys marketing materials, and in other sales and marketing activities. Timesys agrees to cooperate with You in reasonable publicity efforts involving Timesys Software, such as, for example, media releases and marketing materials in accordance with Your reasonable request.
   12. Marks: You and Timesys hereby grants to the other the non-transferable, non-assignable, revocable right and license to use the other’s name and trademarks (“Marks”) solely in fulfillment of obligations and exercise of rights under this EULA. Each party shall adhere to each other’s policies regarding use of the other’s Marks, and shall retain the right to revoke permission to use such Marks.
   13. General: All rights not expressly granted herein are expressly reserved.
4. CONFIDENTIALITY

   Each party agrees that it shall not disclose any Confidential Information of the other party nor use any such information other than for purposes of performing its obligations and exercising its rights under this Agreement. “Confidential Information” means all non-public or proprietary information treated as confidential by a party to this Agreement, including, without limitation, any and all financial, technical, marketing, commercial, legal or other information of whatever nature, irrespective of whether such information has been or will be disclosed in writing, verbally or in any other form, disclosed to the other party under this Agreement.

   Regardless of the above, the term Confidential Information shall not include any information which the party receiving the information can clearly establish by documented evidence (i) was at the time of disclosure to it, in the public domain; (ii) was after disclosure of it, published or otherwise becomes part of the public domain through no fault or breach of the receiving party; (iii) was known to the receiving party prior to such disclosure, without any undertaking towards a third party to keep such information confidential; (iv) was provided to it from a third party who had a lawful right to disclose such information to it and which was disclosed by such third party without any obligation for the receiving party to keep such information confidential; or (v) was independently developed by the receiving party without use of the Confidential Information of the disclosing party.

   Any party shall be entitled to disclose Confidential Information in response to a valid order of a court or any other governmental body having jurisdiction over the respective parties or this Agreement or if such disclosure is otherwise required by law or by any binding applicable stock exchange rules, provided that the party shall first, to the extent possible, notify the other party of the required disclosure and make reasonable efforts to reduce any damage to the other party resulting from such disclosure.

   Each party shall ensure that any person to whom the receiving party gives access to Confidential Information of the disclosing party will comply with the confidentiality requirements set out in this Agreement. The receiving party shall be responsible for any breach of such confidentiality requirements by such persons.

   The obligations in this Section 4 shall apply for the duration of this Agreement and for a period of five (5) years thereafter.

5. INTELLECTUAL PROPERTY RIGHTS
   1. General: Timesys holds and retains all right, title and interest in and to Timesys Software, the related source code, any and all modifications to or derivatives of Timesys Software, and any and all associated patents, copyrights, and other intellectual property rights. All software related to Timesys Software is Confidential Information of Timesys.

      You hold and retain all right, title and interest in and to Your Content, the related source code, any and all modifications to or derivatives of Your Content, and any and all associated patents, copyrights, and other intellectual property rights. All software related to Your Content is Confidential Information of You.

   2. Third Party: Certain portions of Timesys Software may be subject to the ownership rights of Timesys licensors and incorporated under license to Timesys. You will find any relevant information about third party ownership rights in the relevant notice, license and/or copyright files included with the programs. Timesys Software may allow access to websites that are owned and/or operated by third parties and are not under Timesys’ control (“Third Party Websites”). You acknowledge and agree that Timesys provides such links to Third Party Websites only as a convenience and the existence of any link does not imply endorsement by Timesys of any Third Party Website or any part of its content or any products or services available through such site.
   3. Open Programs: This EULA does not apply to the Linux kernel or any other software tools, drivers or other components identified as subject to an open source license in the relevant notice, license and/or copyright files included with the programs (collectively the “Open Programs”). Open Programs may be supplied in the same electronic file transmission as proprietary software, but are separate and distinct programs. Timesys Software is not subject to the GPL, and certain portions of the Timesys Software are subject to the Common Public License (“CPL”) and/or other license terms
   4. Injunctive Relief: You hereby acknowledge and agree that Timesys Software and related source code are proprietary and confidential to Timesys and that Timesys Software and related source code contain valuable Timesys trade secrets, the disclosure of which would cause Timesys irreparable harm for which monetary compensation would be inadequate. You therefore further agree that if You breach Your obligations under this EULA, Timesys shall be entitled to injunctive relief from a court of competent jurisdiction without the need to post any bond or demonstrate actual damages
6. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
   1. Timesys will, hold harmless, indemnify and defend or settle, at its option and expense, any action brought against You in the United States, Canada, Japan, China or a member state of the European Union which alleges that the Timesys Software infringes a patent or copyright or misappropriates a trade secret in such jurisdiction. Timesys will pay any costs and damages finally awarded against You that are attributable to the action. You understand and agree that as conditions to Timesys obligations under this section You must: (a) notify Timesys promptly in writing of the action; (b) provide Timesys, at Timesys cost, all reasonable information and assistance to settle or defend the action; and (c) grant Timesys sole authority and control of the defense or settlement of the action, however You may participate in any defense or settlement of the action at Your own cost.
   2. If a claim is made under 6.1 Timesys may, at its option and expense, either: (a) replace or modify the Timesys Software so that it becomes non-infringing; (b) procure for You the right to continue using the Timesys Software; or (c) require the return of the Timesys Software and refund to You any fees paid, less a reasonable allowance for use.
   3. Timesys has no liability to You if the claim is based upon: (a) the combination of the Timesys Software with any product not furnished by Timesys; (b) the modification of the Timesys Software other than by Timesys or as directed by Timesys; (c) the continued use of the infringing Timesys Software when Timesys has provided You with a current unaltered release of a non-infringing Timesys Software in accordance with 2.1; (d) the use of Timesys Software as part of an infringing process; (e) a product that You make, use, or sell; (f) any Trial Software or Pre-Release Software; (g) any third party software provided by Timesys’ licensors who do not provide such indemnification to You; or (h) infringement by You that is deemed willful by a court of law. In the case of (h), You shall reimburse Timesys for its reasonable attorney fees and other costs related to the action. THIS SECTION 6 IS SUBJECT TO SECTION 11 AND STATES THE ENTIRE LIABILITY OF TIMESYS AND ITS LICENSORS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION BY ANY TIMESYS SOFTWARE LICENSED UNDER THIS AGREEMENT
7. TECHNICAL SUPPORT

   Timesys Service Technical Support consists of the support described at https://linuxlink.timesys.com/about/support/

   Installation of Timesys Software may require entry of specific license keys issued by Timesys to You. You agree to the use of these license keys in accordance with this EULA, and to hold these license keys as Confidential Information.

8. TERM AND TERMINATION
   1. This EULA shall become effective upon downloading the Software Products and shall remain in full force and effect until terminated under this Section 8.
   2. 8.2. The rights granted under the License Grant section of this EULA shall automatically terminate if You breach any of the provisions contained herein, including any failure to pay license fees, if applicable. The confidentiality obligation in Section 4 of this Term shall survive for a period of three (3) years after any such termination. Sections 5, 6, 9, 10, 11, 13, and 14 of this Term also shall survive after any such termination.
9. NO WARRANTY
   1. The Timesys Software is provided “AS IS” without warranty of any kind, express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
   2. Pre-Release Software may not be fully tested, debugged, or otherwise readied for production use. Any information provided by Timesys regarding the development status of Pre-Release Software is for Informational Purposes Only.
10. INDEMNIFICATION

    You agree to indemnify, defend, and hold Timesys harmless from and against any and all claims, suits, damages, costs, and expenses arising from Your use of the Timesys Software, howsoever arising.

11. LIMITATION OF LIABILITY

    To the maximum extent permitted by applicable law and notwithstanding the failure of any remedy to fulfill its essential purpose: In no event shall Timesys, Timesys officers, directors, employees, agents, or distributors be liable to You the other party respectively or any other party for any loss or damages or legal fees arising from or related to the use of the Timesys Software, howsoever arising, or any damages related to this EULA in excess of the amount of fees paid hereunder in the twelve (12) months preceding the event giving rise to the claim; and, in no event shall Timesys, Timesys’ directors, employees, agents, or distributors be liable for any indirect, special, punitive, or consequential damages, including without limitation, loss of profits, howsoever arising, even if informed of the possibility of such damages.

12. DISPUTE RESOLUTION

    In the event of a dispute between You and Timesys arising in connection with this EULA, such dispute shall be solely and finally resolved by binding arbitration under the rules and auspices of the American Arbitration Association. Arbitration shall take place in Pittsburgh, PA, U.S.A. The foregoing shall not prevent each party from seeking applicable injunctive relief in a court of competent jurisdiction.

13. CHOICE OF LAW AND FORUM

    This EULA shall be governed for all purposes by the laws of the Commonwealth of Pennsylvania.

14. GENERAL

    This EULA contains the entire agreement and understanding between You and Timesys with respect to the subject matter. Additional or conflicting terms on any document issued by a party shall have no force or effect against the other party. This EULA may not be modified or appended except by an agreement in writing signed by the party against whom enforcement is sought. If any provision of this EULA is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this EULA shall not be affected. This EULA may not be assigned by a party, in whole or in part, without prior written consent of the other party. No waiver by either party of any rights under this EULA will be effective unless such waiver is signed by the party against whom enforcement is sought. Any notices relating to this EULA should be sent via receipted delivery to Timesys Corporation, 1905 Blvd. of the Allies, Pittsburgh, Pennsylvania 15219 USA.