MICROSOFT CORTANA DEVICES SDK PROGRAM AGREEMENT

Transcription

1 MICROSOFT CORTANA DEVICES SDK PROGRAM AGREEMENT This Microsoft Cortana Devices SDK Program Agreement ( Agreement ) provides the terms and conditions governing your use of the Cortana Devices SDK (as described below) under the Cortana Devices SDK Program (as described below). This Agreement is a contract between you ( Company or you or your, on behalf of the entity you represent by registering for it on the Program Portal) and Microsoft Corporation ( Microsoft ), and is effective as of the date that that you register for the Program ( Effective Date ). The Agreement consists of this cover page; the Terms and Conditions; the Exhibits attached hereto; and any documentation, procedures and guidelines referenced herein. This Agreement includes important obligations relating to your use of the Cortana Devices SDK and Cortana Service. Please read them carefully. By registering for the Cortana Devices SDK Program on the Program Portal, you (on behalf of yourself or the entity you represent) agree to be bound by the terms of this Agreement. The person registering for Company represents and warrants that he/she is fully authorized to enter into this Agreement on behalf of Company. TERMS AND CONDITIONS 1. Background. Microsoft has developed a software development kit (SDK) which enables OEMs, ODMs and developers to access cloud based Cortana APIs connecting to the Cortana Service on voice enabled devices for their End Users. Microsoft will license such SDK to Company for the purpose of Company pre-installing certain code on its devices to be sold to End Users. End Users will download the Cortana Service app to configure and manage usage of the Cortana Service on the Prototype with a Microsoft Account. 2. Definitions. Capitalized terms have the meanings set forth below or elsewhere in this Agreement (including the Exhibits). (a) Cortana App means the Microsoft developed Cortana application running on an End User s mobile or PC device for certain Windows, Android and ios platforms that amongst other things, allows End Users to sign in via a Microsoft Account and enable and manage the Cortana Service on Prototype. (b) Cortana APIs means service based application programming interfaces (e.g., REST) and proprietary technical specifications that define the formats and communications protocol that Microsoft provides to Company to enable the Company Device to provide access to the Cortana Service. (c) Cortana Devices SDK means the most current release (as of the Effective Date) of the Cortana Devices software development kit that provides the Device Software, Cortana APIs, Sample Code, tools, libraries and related documentation that can be integrated into Company Devices in order to access Cortana APIs, with such updates and new releases as developed by Microsoft from time to time and provided to Company. (d) Cortana Service means Microsoft s personal voice assistant service for Company Device that collects, processes and analyzes User Data and returns Results. The specific features and functions enabled by the Cortana Service will vary by form factor, geography, device maker and model, etc. (e) Device Software means the distributable code, in object code form, provided by Microsoft that is marked as distributable and that will be installed on the Company Device by Company prior to 1

2 distribution of the Company Device to enable End User access to the Cortana Service and other services as made available by Microsoft. (f) End User means an employee of Company who has been authorized by Company to use the Cortana Devices SDK and associated Cortana Service for purposes of the Program, provided that such person is subject to confidentiality terms equivalent to those in Section 4. (g) Excluded License means any license that requires as a condition of use, modification or distribution of software subject to such license, that such software or other software combined or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. (h) Intellectual Property Rights or IPR means all intellectual property rights throughout the world, existing under statute or at common law or equity, now or hereafter in force or recognized, including: (a) copyrights, trade secrets, patents, inventions, designs, and, semiconductor chip designs, moral rights, mask works, rights of personality, publicity, and privacy, rights in customer information, rights (if any) in domain names, and any other intellectual property and proprietary rights; (b) any application or right to apply for any of the rights referred to in clause (a); and (c) all renewals, extensions, future equivalents, and restorations thereof, now or hereafter in force and effect. (i) Microsoft Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with Microsoft, where control means either having ownership of 50% or more of the entity or the right to direct the management. (j) Program Portal means the password-protected website Microsoft makes available in connection with the Program, through which Company obtains access to the Cortana Devices SDK and other materials and information related to the Program. (k) Program means Microsoft s public preview program for Cortana device developers under which Microsoft makes available the Cortana Devices SDK and associated access to the Cortana Service under the terms of this Agreement. (l) Prototype means a preliminary version of the Device used only for Company s internal use and testing, and shall not be for resale, distribution or production in commercial quantities. (m) Results means results and other insights to End Users, which may include audio, text, images, and Third Party Services, generated by the Cortana Service in response to End User requests made using the Prototype. (n) Sample Code means the software marked as sample or delivered in a folder marked sample that may be included as a part of the Cortana Devices SDK. Sample Code may be in source code or object code format. Sample code is reference code for internal development, not for distributing through Prototypes to End Users. (o) Term has the meaning given in Section 7(a). (p) Third Party Materials means any data, content, code, software or other materials that are webcrawled or owned by a third party and licensed under separate terms and conditions to Microsoft. (q) User Data means information provided by or obtained from End Users of the Prototypes by Microsoft, including all text, sound, video, photos, or image files, and software collected through use of the Cortana Service as well as End User s device details, configuration settings or other End User information collected by Microsoft in order to provide Cortana Services. 2

3 3. License Rights and Restrictions. (a) Limited License Grant. Subject to the terms and conditions of this Agreement, Microsoft (or the applicable Microsoft Affiliate) grants Company a royalty-free, non-exclusive, revocable, nonsublicenseable, non-transferable license in the United States for the Term to: (i) Use the Cortana Devices SDK, internally only, to install and/or preinstall Device Software on Prototypes, or integrate Device Software for use with the Cortana APIs and Cortana Service only for internal test and evaluation purposes of Prototypes only; and (ii) transmit User Data and receive Results from the Cortana APIs and Cortana Service, limited solely for internal Company use for test and evaluation purposes with a Prototype device. (b) Reservation of Rights. Except for the limited licenses expressly set forth in Section 3(a), Microsoft retains all right, title and interest (including all intellectual property and proprietary rights) in and to the Cortana Devices SDK and its own products and services, including but not limited, the Cortana Service, and the underlying intellectual property. Except as expressly granted in the Agreement, all use of the Cortana Devices SDK is by license only, not subject to the first sale or similar doctrine under copyright law. Without limitation, Company agrees that the license under this Agreement does not grant Company any development, marketing or distribution rights to any part of the Cortana Devices SDK. Any and all distribution rights with respect to the Cortana Devices SDK shall be covered by a separate commercial distribution agreement and subject to the mutual agreement of the parties. Any Prototypes that are installed with the Cortana Devices code may only be used for Company s internal use and testing, and shall not be for resale, distribution or production in commercial quantities. (c) License Restrictions. As a condition to the license granted in this Agreement, Company must: (i) Not allow any person or entity to use the Cortana Services SDK, or any elements thereof, or have access to the Cortana Services to provide Results, except for End Users and in such case only for purposes of the limited license granted under Section 3(a); (ii) Comply with the Cortana Devices SDK documentation, any instructions for installing software provided in the Cortana Devices SDK, and any instructions for displaying the Cortana Service, including the Results; (iii) Use the Results only for test and evaluation purposes, and not transmit any Results to end users or third parties; (iv) Not grant End Users or other third parties a license to use, or provide its authorizations or credentials that enable third party use of, the Cortana Devices SDK or the Cortana Service; (v) Not subject the Cortana Devices SDK or derivative works in whole or in part to any of the terms of an Excluded License (further, the license rights in this Agreement do not include any license rights to subject the Cortana Devices SDK to the terms of an Excluded License). (vi) Not reverse engineer, decompile, or disassemble the Cortana Devices SDK, except and only to the extent applicable law expressly permits the activity; (vii) Not remove, modify or obscure any attributions, copyright, trademark, or patent or other notices, terms and conditions that appear on the Cortana Devices SDK as delivered to Company; and (viii) Not use, copy, adapt, modify or prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit 3

4 Cortana Devices SDK or Results from the Cortana Service, or create a database based on such Results. (d) Account and Access Credentials. Microsoft may provide you with the means for obtaining unique access credentials to create an account and access the Portal and/or for use with the Cortana Devices SDK solely for the purposes stated in this Agreement. Your account is only for use by you and the individuals you authorize as your delegates in the Portal. You are responsible for all activity that takes place with your account. You may not share your user name and password or otherwise authorize any third party (other than your authorized delegate(s)) to access or use the Cortana Devices SDK, associated Cortana Service and/or Portal on your behalf. You are solely responsible for: (i) keeping your access credentials confidential; and (ii) any and all activities that occur under your account. Microsoft may use the contact information you provide with your account to send you newsletters and information regarding events, contests, promotions, and the like. You must promptly notify Microsoft of any unauthorized use of your account, or any other breach of security. Microsoft will not be liable for any loss that you incur if someone else uses your account and access credentials, either with or without your knowledge. However, you could be held liable for losses incurred by Microsoft or another party if someone else uses your account. 4. Confidentiality. During the Term, and for five years thereafter, Company will hold in strictest confidence, and will not use or disclose to any third party, any Microsoft Confidential Information. The term Microsoft Confidential Information means all non- public information that Microsoft designates, either in writing or orally, as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. Microsoft Confidential Information includes (but is not limited to) information relating to: (i) The Program, the Program Portal and all materials in or related to the Cortana Device SDK; (ii) Released or unreleased Microsoft software or hardware products, including without limitation, the Cortana Devices SDK; (iii) Microsoft source code; (iv) Marketing or promotion of any Microsoft product; (v) Business policies or practices of Microsoft; (vi) Customers or suppliers of Microsoft; (vii) Information received from others that Microsoft must treat as confidential; (viii) The existence and terms of this Agreement; and (ix) Information provided by Microsoft under this Agreement or obtained or created by Company during the course of this Agreement, including: Information in any reports provided to Microsoft; Any electronic or written correspondence between the parties; Microsoft customer lists, customer information and PII (as defined in Section 11(b)), regardless of the source; and Transactional, sales and marketing information related to the Cortana Services. The results of any tests or evaluations If Company has questions regarding what comprises Microsoft Confidential Information, 4

5 Company will consult Microsoft. Microsoft Confidential Information does not include information known to Company prior to Microsoft's disclosure to Company, or information that becomes publicly available through no fault of Company. 5. Program Requirements. (a) Prototypes. Company agrees that it must comply with the Program Requirements set forth in Exhibit A in connection with its exercise of rights under this Agreement, which requirements may be updated or modified by Microsoft from time to time. (b) Commercial Distribution. Prior to distributing a commercial device, Company must submit its proposed device to Microsoft for review and certification. Microsoft will provide Company the test specification and certification requirements in connection with Company s execution of a commercial distribution agreement, which will include, but not be limited to requirements for overall quality and usability of Cortana Service on the Company Device, audio/microphone, industrial design and compliance, which may be updated or modified by Microsoft from time to time. 6. Prototype Development. (a) Prototype Key. For test and evaluation purposes, Microsoft will provide Company a prototype key as part of the Cortana Device SDK for purposes of accessing the Cortana Service APIs. Company shall not use the prototype key for any purpose other than the development, testing and evaluation of a Prototype and use of the Cortana Service as needed for such activities. Company must not distribute any device installed with the Device Software or provide access to the Cortana Service to any end users (other than the End Users for test and evaluation purposes) under this Agreement. (b) Microsoft Support Limitations. Microsoft is not required to provide updates, new releases, enhancements or any other kind of support the Cortana Device SDK or Cortana Service to Company in connection with the Prototypes or any of Company s test, evaluation and other activities related to this Agreement. (c) No Data Collection. Company must not collect audio or other User Data from the Cortana Service. Company must not collect information through the Cortana Service with the purpose of monitoring Cortana Services usage or building a competitive service; however, Prototype may collect usage metrics or other data from End Users to improve Prototype in connection with testing and evaluation only, and building an internal-use prototype. Any and all such collection of User Data must be in compliance with applicable laws, including but not limited to those relating to privacy of such information. 7. Term and Termination. (a) Term. This Agreement will continue until terminated by either party. Company or Microsoft may terminate this Agreement upon written notice at any time and for any reason. (b) Effect of Termination After termination and upon written request, (i) Company shall cease use of the Cortana Devices SDK and either destroy or return it to Microsoft; and (ii) each party shall return or destroy all copies of the other party s Confidential Information in its possession which it is aware and to which it has access and is reasonably able to destroy or delete, including from all hard disks and memory. Neither party shall be liable to the other for any damages resulting from termination of this Agreement as permitted under this Agreement. 5

6 (c) Survival. Section 3 (License Rights and Restrictions), Section 4 (Confidentiality), this Section 7 (Termination), Section 9 (Company Indemnification), Section 10 (Limitation of Liability), and Section 12 (General) of this Agreement will survive the expiration or termination of this Agreement. 8. Representations and Warranties; Disclaimers. (a) Corporate Representations and Warranties. Company represents and warrants to Microsoft that: (i) Company has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of Company under the Agreement, including, without limitation, the right to grant any and all rights and licenses under the Agreement without violation of the rights of any third party; (ii) the execution of the Agreement and performance of Company s obligations under the Agreement do not and will not violate any other agreement to which Company or any of its Affiliates is a party; and (iii) this Agreement, when executed and delivered, constitutes Company s legal, valid and binding obligation. (b) Other Representations and Warranties. Company represents and warrants to Microsoft that it will not knowingly subject the Cortana Devices SDK or derivative works in whole or in part to any of the terms of an Excluded License. Company and Prototypes will not violate or infringe or promote the violation or infringement of any Intellectual Property Rights of any person or entity in connection with the exercise of its rights under this Agreement. Company will not execute or distribute any virus, spyware, adware, malware, or other harmful or malicious component through any Prototype. (c) NO WARRANTY; DISCLAIMER. THE CORTANA DEVICES SDK AND CORTANA SERVICES ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE). NEITHER MICROSOFT, MICROSOFT AFFILIATES, THEIR LICENSORS, CHANNEL PARTNERS OR RESELLERS, NOR THE COPYRIGHT HOLDERS MAKES OR HAS MADE ANY REPRESENTATIONS OR WARRANTIES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE) INCLUDING (A) THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTIBILITY, TITLE OR NON-INFRINGEMENT; (B) THAT ANY PATENT CLAIMS COVER THE DEVICE SOFTWARE OR PROTOTYPE; (C) REGARDING THE SCOPE, COVERAGE, VALIDITY, OR ENFORCEABILITY OF MICROSOFT OR ANY OF ITS AFFILIATES NECESSARY CLAIMS; OR (D) THAT IMPLEMENTATION OF, ACCESS TO, OR USE OF THE CORTANA DEVICES SDK OR CORTANA SERVICE, OR PROTOTYPE, OR OTHER MICROSOFT MATERIALS WILL NOT INFRINGE ANY THIRD-PARTY PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER RIGHTS. (d) No Representations for MS. Company shall not make any representation or warranty (express or implied) to any other third party on behalf of Microsoft. 9. Company Indemnification. Company will defend, indemnify, and hold harmless Microsoft and Microsoft Affiliates from and against any damages, claims, costs, judgments (or settlements to which Company consent), and expenses (including reasonable attorneys fees) arising from: claims or demands associated with Company s breach of its obligations under this Agreement and any third party claims or demands related to the use of the Cortana Devices SDK or Cortana Services, and product safety, personal injury, health, or user discomfort. To the extent that a Company is obligated to defend, indemnify or hold Microsoft and Microsoft Affiliates harmless in the Agreement: (i) Microsoft must promptly notify Company of the claim; (ii) Company must have sole control over defense and/or settlement of the claim; and (iii) Microsoft must give Company reasonable assistance in the defense of the claim; Company will 6

7 reimburse Microsoft for its reasonable out-of-pocket expenses that Microsoft incurs in providing that assistance (excluding employee compensation or attorney s fees). 10. Limitation of Liability (a) No Lost Profits; Consequential Damages; Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(b), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,IN NO EVENT WILL MICROSOFT, COMPANY, OR THEIR RESPECTIVE EMPLOYEES, SUPPLIERS, OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUE, SALES, OR DATA, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THIS PRODUCT TERMS DOCUMENT, EVEN IF THE AT-FAULT PARTY (OR ITS EMPLOYEES, SUPPLIERS, OR AFFILIATES) IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(b), EACH PARTY S TOTAL CUMULATIVE LIABILITY (IF ANY) TO THE OTHER PARTY UNDER THIS AGREEMENT (AND THE OTHER PARTY S EXCLUSIVE REMEDY FOR ANY SUCH LIABILITY) WILL BE LIMITED TO THE OTHER PARTY S DIRECT DAMAGES FOR CLAIMS ARISING UNDER THIS AGREEMENT UP TO AN AMOUNT NOT TO EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00). THE EXCLUSIONS AND LIMITATIONS APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. (b) Exceptions. THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (I) A PARTY S DAMAGES CAUSED BY THE OTHER PARTY S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE IN CONNECTION WITH THE AGREEMENT; (II) EITHER PARTY S INFRINGEMENT, MISAPPROPRIATION, OR OTHER VIOLATION OF THE OTHER PARTY S INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS; (III) COMPANY S OBLIGATIONS UNDER SECTION 3 (LICENSE RIGHTS AND RESTRICTIONS); (IV) A PARTY S BREACH OF SECTION 4 (CONFIDENTIALITY); OR (V) COMPANY S OBLIGATIONS UNDER SECTION 9 (COMPANY INDEMNIFICATION). MICROSOFT AND COMPANY ACKNOWLEDGE THAT ALL DAMAGES EXCLUSIONS AND ALL LIMITATIONS OF LIABILITY WILL APPLY EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. 11. Business Integrity Principles. (a) Compliance with Laws. Each party commits to conducting its respective business activities in full compliance with all applicable international, national, and local laws (including regulations and binding judicial law), including without limitation, to comply with laws that govern labor practices, human rights, health and safety, and environmental protection, and to obtain any required local government approvals, each at its own expense. (b) Customer Privacy and Data Security. Each party commits to complying with privacy and data security laws applicable to the collection and storage of personally identifiable information ( PII ) from its own customers and from the other party s customers. (c) Business Conduct. Each party commits to conducting its respective business activities with integrity, and in full compliance with all applicable international, national, and local laws (including regulations and binding judicial law) relating to business conduct, including without limitation applicable anti-corruption laws. 12. General. (a) Notices. Notices may be provided either by electronic or physical mail. Microsoft may also provide notices of changes to the Cortana Devices SDK Program via the Program Portal. The person(s) 7

8 identified as Company s contact person and and/or physical address for receiving notices on the Portal will receive notices on behalf of Company. Microsoft will receive notices from Company at the following address: cdsdk-cert@microsoft.com with copy to Attention: AI&R CELA, Cortana, One Microsoft Way, Redmond, WA Each party may change the persons to whom notices will be sent by giving notice to the other. (b) Governing Law and Venue. This Agreement is governed by and interpreted in accordance with the laws of the State of Washington, without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with this Agreement may be finally settled by the state or federal courts located in King County, Washington. Microsoft may pursue injunctive relief against Company in any forum to protect intellectual property rights. If Microsoft pursues injunctive relief in a forum other than those specified in this section, Microsoft will give prior notice to Company. No notice is required if Microsoft reasonably determines that doing so will prevent it from reasonably protecting its intellectual property. The parties hereby consent to nonexclusive personal jurisdiction and venue in the federal and state courts in King County, Washington. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If either party employs attorneys to enforce any rights related to this Agreement, the primarily prevailing party will be entitled to recover its reasonable attorneys fees, costs and other expenses. (c) Successors and Assigns. Neither party may assign, delegate or otherwise transfer the Agreement, or its rights or obligations hereunder (whether by merger, asset sale, operation of law or otherwise), in whole or in part to any third party except that Microsoft may assign, delegate, or otherwise transfer the Agreement, or its rights or obligations hereunder, in whole or in part, to any Microsoft Affiliate. The Agreement will be binding upon, and enforceable by, and will inure to the benefit of the parties hereto and their respective permitted successors and permitted assigns. Any assignment not permitted by the Agreement is void. (d) Amendment and Waiver; Entire Agreement. Microsoft may amend the terms and conditions of this Agreement and the Program at any time and from time to time, at its sole discretion. The amended terms will be posted on the Program Portal and will be effective as of the date that they are first posted. Company is responsible for reviewing the Program Portal from time to time to make itself aware of any modified terms and notices related to the Agreement and the Program. IF COMPANY DOES NOT AGREE TO ANY PROGRAM CHANGE OR MODIFICATION TO THIS AGREEMENT, THEN COMPANY S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT UPON NOTICE TO MICROSOFT AS PROVIDED IN SECTION 7. IF COMPANY CONTINUES TO EXERCISE ITS LICENSE AND/OR OTHER RIGHTS UNDER THIS AGREEMENT FOLLOWING ANY CHANGE POSTED ON THE PORTAL, THEN SUCH ACTIONS WILL CONSTITUTE COMPANY S BINDING AGREEMENT TO THE CHANGE. Except as provided above, no other amendment to, or waiver of, any provision of the Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement, together with all exhibits, schedules, attachments and any documents, guidelines and policies referenced herein represents the entire agreement between the parties with respect to the subject matter of this Agreement. In the event of any conflict or inconsistency between the terms set out in the main body of the Agreement and those in an Exhibit, then the terms in the Exhibit will control. This Agreement supersedes all prior agreements and communications of the parties, oral or written, relating to its subject matter. (e) Severability. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of the 8

9 Agreement, and instead, the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained in it. (f) Trademarks. Company will not use the Microsoft name, logos, trademarks or service marks, or issue any press releases or other publicity related to Company s relationship with Microsoft or this Agreement, without prior written approval from the Microsoft. (g) Publicity. No party may make any public announcement or issue any press release about the existence or terms of the Agreement, (including by Company regarding the Cortana Service, such as the performance of the Cortana Service or results of any benchmark comparisons of the Cortana Service to other services) without the other party s prior written approval, nor will any party misrepresent or embellish the relationship with the other party in any way. Company must not disparage Microsoft or any of its products or services. Any and all publicity relating to the Agreement or any transactions between the parties under it must be approved by both parties in writing and in advance of the release. Any authorization, facilitation, assistance or encouragement that Company may give to encourage a third party to take an action that violates this Section will be deemed to be an action that was taken by Company itself and will be a breach of this Agreement. (h) Independent Contractors. Each party is an independent contractor with respect to the other for purposes of the Agreement and its subject matter. Nothing contained in the Agreement creates in any manner whatsoever any partnership, joint venture, employment, agency, fiduciary, or other similar relationship between the parties. Company will not make any statements or provide any information, whether with the Prototype or otherwise, that states, implies, suggests or otherwise contradicts the relationship as described in this Section. (i) Non-Exclusivity; Independent Development. The parties are working together on a non-exclusive basis. Engagements between the parties will not be interpreted to limit either party s right to obtain, promote, or distribute products or services from other sources. Neither party is restricted from independently developing or acquiring new products or services, improving existing products or services, or marketing any new, improved, or existing products or services, subject to the terms of the confidentiality provisions in Section 4. This Agreement does not require either party to agree to any other licenses or enter into any other transactions with the other party. 9

10 EXHIBIT A CORTANA PROGRAM REQUIREMENTS Company agrees that its access to the Cortana Devices SDK and associated Cortana Service, and the Prototype developed, designed and built by Company under this Agreement, must comply with the following requirements and restrictions. Any devices manufactured by Company for distribution (the Company Device ) will be required to company with the same requirements (or alternative, additional or modified requirements), as well as pass certification testing, to receive a Service Access Token as provided in the commercial distribution agreement that Microsoft may make available to companies for the distribution of commercial devices based on the Cortana Devices SDK. 1. Prototype Device Responsibility. COMPANY IS SOLELY RESPONSIBLE FOR THE PROTOTYPES AND AGREES THAT IT BEARS ALL RISK AND LIABILITY FOR PROTOTYPES, INCLUDING BUT NOT LIMITED TO THE TECHNICAL OPERATION AND RELIABILITY OF PROTOTYPES. WARNING: THE DEVICES SOFTWARE AND OTHER COMPONENTS OF THE CORTANA DEVICES SDK ARE NOT FAULT-TOLERANT. SUCH COMPONENTS ARE NOT DESIGNED OR INTENDED FOR USE IN ANY DEVICE WHERE FAILURE OR FAULT OF ANY KIND OF THE PRODUCT COULD REASONABLY BE SEEN TO LEAD TO DEATH OR SERIOUS BODILY INJURY OF ANY PERSON, OR TO SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Company must determine that: (i) the Device Software and Cortana Service is suitable in quality and performance for use in its Prototypes; (ii) Provide information to End Users about the proper use of the Prototypes; 2. Additional Program Requirements. Company agrees that Company, and any Prototypes (as well as the Company Device), must comply with the following requirements, together with any updates to these requirements as may be provided by Microsoft from time to time: (a) not knowingly serve or otherwise place advertisements during, or insert any viruses, worms, or other malware that affect the Cortana Service, End User, or User Data (including data collection) into the Cortana Service or launch process of the Cortana Service; (b) Not knowingly allow the Prototype to be promoted or targeted to children under the age of 13 or allow access to the Cortana Service by any End User accounts or profiles for children under the age of 13; (c) Company must not change, add to, replace, disable, obscure, replace or otherwise modify any Results, directed to or delivered by the Cortana Service; (d) Company must not interfere, with, impede, disrupt or otherwise interfere with: (i) the features or domains made available by Microsoft through the Cortana Service, (ii) the authentication methods specified by Microsoft (or provide access to the Cortana Service other than through such methods), (iii) any security device, mechanism or protocol of the Cortana Service; or (iv) the Cortana Service, in any other way. (e) Company may restrict use of the Cortana Service in Prototypes or limit the number of Prototypes that may access the Cortana Service, and if Company exceeds certain thresholds of usage that Microsoft may identify from time to time, Company may be subject to additional terms in order to continue Company s use of the Cortana Service; 10

11 (f) Company must not promote the Prototype, or knowingly allow the Cortana Device to be used for, the purpose of any of the following activities: (i) transmitting pornography or sexually explicit, obscene, violent, harassing, discriminatory libelous or defamatory materials; (ii) promoting hatred or discrimination or any activity or content that in our judgment is inappropriate or offensive, or employ discriminatory practices based on race, gender, religion, nationality, disability, sexual orientation, age or any other protected class; (iii) promoting, facilitating or undertaking illegal or potentially illegal activities, including but not limited not using or knowingly allowing the Prototype to be used for to operate as a gambling business (including without limitation online gambling (e.g., poker), lotteries (e.g., sale of lottery tickets), raffles, sports forecasting, and odds-making) and shall disable such activities as soon as it becomes aware of them; (iv) monitoring the availability, performance, or functionality of any of Microsoft s products or services, and Company will not engage in any such activities; and (v) Prototype will transmit audio intended for the Cortana Service directly to the Cortana Service immediately upon recording such audio in accordance with Microsoft s wake word requirements; except as enabled by Skype Services, access the Cortana Service through Prototype during a voice communication occurring on or through Prototype (such as a phone call) without Microsoft s prior written approval, and any such implementation may be subject to additional terms and conditions. 3. Skype Service. The Cortana Devices SDK may include Device Software, APIs, Sample Code, tools, libraries and related documentation for Skype Services (as described below). If Company installs Device Software on Prototype that enables End Users use of Skype Service, then all terms of this agreement that refer to Cortana Service will be considered to include Skype Service. Without limitation, this includes the right to distribute the Skype distributable code in the Cortana Devices SDK to enable use of Skype Service by End Users, subject to the following additional restrictions. (a) Skype Service means Microsoft s Skype calling service for Prototype that may be accessed by distributable code that may be included in the Cortana Devices SDK, which is integrated into the Cortana Device in order to access Skype calling services with the Prototype. (b) Skype Service Terms of Use. End Users must agree to all Skype Service Terms of Use and privacy statement or subsequent versions as determined solely by Microsoft that govern an End Users access to Skype Services. Company shall inform its End Users of this requirement on its packaging and other end user materials. 4. Other Third-Party Services. The Cortana Service may enable End Users to access Third Party Services that contain additional third-party service requirements. The Cortana Devices SDK may not include all software necessary to provide third-party services made available through Cortana Services on the Prototype for which third-party licenses are necessary. Company will be responsible for obtaining all necessary third-party licenses. 11