Company Name: crackle, inc. Address: 10202 W. Washington blvd., Culver city, ca 90232 Effective Date



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Device & Software Evaluation Agreement for Developers
This Device & Software Evaluation Agreement (this “Agreement”) is entered into by Google Inc. (“Google”) and

Company Name: CRACKLE, INC.



Address: 10202 W. WASHINGTON BLVD., CULVER CITY, CA 90232

Effective Date: [ENTER START DATE]

Term: from Effective Date to [ENTER END DATE] (Maximum of six months from Effective Date)

Date of NDA between Google and Company: [ENTER DATE OF NDA] 

(THERE MUST BE A DEVELOPMENT NDA IN PLACE ON OR BEFORE EFFECTIVE DATE OF THIS AGREEMENT)
This Agreement sets forth rules governing the use of all Android development platform devices, if any (“Device(s)”), and materials (including but not limited to firmware, development tools (including SDKs), software (whether preloaded on the Device(s), provided to the Device(s) via update and/or provided separately), documentation, specifications and schematics) (“Materials”) being provided to COMPANY and Authorized Personnel (as defined below) by Google. Such Device(s) and Materials are listed in Exhibit A, which may be amended from time to time by mutual agreement of the parties in writing.


  1. Device(s) and Materials.

This Agreement will cover the Device(s) and/or Materials set forth in Exhibit A. Requirements for Device(s) and Materials in this Agreement shall apply only if the applicable item is listed in Exhibit A.


  1. Authorized Personnel.

COMPANY and its employees are already subject to non-disclosure obligations pursuant to the NDA between COMPANY and Google identified above. Additionally and subject to the terms and conditions of this Agreement, COMPANY will only provide access to Device(s) or Materials to those COMPANY employees and third-party contractors who: (a) have agreed in writing to keep such information confidential; (b) have a need to access the Device(s) or Materials for the purposes authorized under this Agreement; and (c) are listed in Exhibit A (the foregoing (a), (b), and (c), collectively “Authorized Personnel”).
COMPANY may request that additional COMPANY employees and/or third party contractors become Authorized Personnel by sending an email request to android-earlyaccess@google.com. Google may grant such requests in its sole discretion.
COMPANY will not disclose any information regarding the Device(s) or Materials, including the fact that it exists, to anybody except for: (i) full-time Google employees working on the Android project; and (ii) Authorized Personnel. The people described in (i) and (ii) are “Authorized Individuals.” COMPANY shall not mention or discuss the Device(s) or Materials in any written communication other than private communications to these Authorized Individuals.
COMPANY is liable for all acts and omissions of its Authorized Personnel, including third-party contractors.


  1. Authorized Use.

The Device(s) is being provided to COMPANY to be used by COMPANY only for development, evaluation and testing purposes directly related to Android. Any Materials included on the Device(s) or delivered to COMPANY for use with the Device(s) are Google Confidential Information. Materials will be used by COMPANY only for development and testing purposes directly related to Android and will remain the property of Google and its licensors. Other uses may be approved by Google in writing (including email) but such approval must come from a Google employee at Director level or higher.


  1. Restrictions.

Due to the highly confidential nature of this project, COMPANY will take extra precautions regarding COMPANY’s and any Authorized Personnel’s use of the Device(s) and Materials. COMPANY will, and must ensure that all Authorized Personnel agree to, comply with the obligations set forth herein IN ADDITION to COMPANY’s existing obligations to Google.


    1. Neither COMPANY nor Authorized Personnel may take any photographs of the physical Device(s), or any photographs or screenshots of software or any Materials running on the Device(s).

    2. COMPANY may not show or display the Device(s) or Materials to anybody except for Authorized Individuals.

    3. COMPANY will create a password for the Device(s), where password protection is supported, and the Device(s) will be used in password-protected form. The Device(s) must also be configured to have password-protected screen lock timeout no greater than 15 minutes.

    4. COMPANY and Authorized Personnel may not disable or modify any tracking or security software on the Device(s).

    5. Any log files and/or error reports generated on the Device(s) or by Materials must also be treated as Google Confidential Information.

    6. Company may not take Device(s) off Google premises without Google’s prior written consent. If Google provides that consent, Company will only use the Device(s) and Materials at the locations specified in Exhibit A, which Company represents and warrants are secured, non-public spaces accessible only to Authorized Personnel.

    7. COMPANY may not transport Device(s) or Materials outside of the locations Specified in Exhibit A except when returning them to Google upon Google’s request, or the expiration or termination of this Agreement.

    8. COMPANY will immediately notify android-earlyaccess@google.com if any Device(s) or Materials are lost or stolen.

    9. COMPANY will use common sense and best efforts in making sure no information regarding the Device(s) is disclosed to anybody other than Authorized Individuals.

    10. COMPANY and Authorized Personnel may not replace or modify the operating system and/or other existing software on the Device(s).

    11. COMPANY and Authorized Personnel may not tamper with or disassemble the Device(s).

    12. COMPANY and Authorized Personnel will not install applications onto Device(s) that report device information and/or platform capabilities to any third party.

  1. Penalties.

In addition to any remedies available to Google in law or equity, for any violation or breach of this Agreement by COMPANY or Authorized Personnel, Google may do any of the following in its sole discretion.

    1. Notwithstanding Section 8, immediately terminate this Agreement and COMPANY shall immediately return the Device(s) and Materials to Google.

    2. Suspend Google Play account(s).

    3. Revoke Google Play account(s) and ban COMPANY and/or Authorized Personnel from any or all Google developer programs.

  1. Title.

All right and title to the Device(s) and Materials remain with Google and do not pass to COMPANY.


  1. Feedback.

If COMPANY or its Authorized Personnel provide any feedback, comments or suggestions to Google about the Device(s) and/or Materials, then Google has a worldwide, irrevocable, perpetual, royalty-free license to make, use, disclose, create derivative works, modify, reproduce, distribute and sublicense all such feedback, comments and/or suggestions.


  1. Termination.

Google may terminate this Agreement at any time upon ten (10) days prior notice, or immediately upon COMPANY’s or its Authorized Personnel’s breach of any provision of this Agreement. Upon expiration or termination of this Agreement, COMPANY agrees to promptly return the Device(s) and Materials (in no case shall this take longer than 5 business days from the termination or expiration of this Agreement) to Google in the same condition as delivered, normal wear and tear excepted. COMPANY is responsible for paying all shipping fees related to the return of the Device(s) and Materials. COMPANY will ship the Device(s) and Materials back to an address specified by Google via certified/registered delivery, signature/receipt requested.


  1. No Warranty.

THE DEVICE(S) AND MATERIALS ARE PROVIDED TO COMPANY ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM CUSTOM OR TRADE. GOOGLE DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS AS TO THE CORRECTNESS, ACCURACY OR RELIABILITY OF THE DEVICE(S) OR MATERIALS. IN NO EVENT WILL GOOGLE BE LIABLE TO COMPANY OR ANY OTHER PARTY FOR ANY DAMAGES, DIRECT DAMAGES, LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MAY ARISE HEREUNDER, EVEN IF COMPANY OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. BY USING THE DEVICE(S) WITHOUT CHARGE, COMPANY ACCEPTS THIS ALLOCATION OF RISK.


  1. Pre-Release Device(s).

The Device(s) may not meet any or all FCC, UL or other safety requirements and may be used for review and evaluation in non-residential areas only. COMPANY is solely responsible for and hereby accepts responsibility for necessary safety precautions in this regard. COMPANY is solely responsible for ensuring that COMPANY’s use of the Device(s) complies with all applicable laws.


  1. Export Compliance.

By this Agreement COMPANY is hereby notified that the Device(s) as well as any accompanying information may be subject to restrictions on use, release, transfer, importation, exportation and/or re-exportation under the laws and regulations of the United States or other countries ("Applicable Laws"), which include but are not limited to U.S. export control laws such as the Export Administration Regulations and national security controls as defined thereunder, as well as State Department controls under the U.S. Munitions List. The Device(s), Materials, and any product thereof, will not be used, released, transferred, imported, exported and/or re-exported in any manner prohibited under Applicable Laws, including U.S. export control laws regarding specifically designated persons, countries and nationals of countries subject to national security controls.


  1. Updates.

Google may update Android software from time to time, and Google makes no warranties or representations regarding the compatibility of any products COMPANY may develop using the Device(s) or Materials with any future versions of Android.


  1. OEM Rights.

The Device(s) is also the confidential information of the OEM that manufactured the Device(s). The OEM for the Device(s) is an intended third party beneficiary of this Agreement and such OEM may enforce this Agreement against COMPANY for any breaches related to the Device(s) to the same extent as Google as set forth in this Agreement.
This Agreement shall be governed by, subject to, and construed in accordance with the internal laws of the State of California, excluding all conflict of law rules.
COMPANY: Google Inc.:
By: By:

Name: Name:


Title: Title:


EXHIBIT A
Device(s):


  • Android development platform device(s) (this may include pre-release devices and accompanying accessories and/or equipment)

Unless otherwise specifically authorized by Google in writing, Device(s) must not be removed from Google premises. Authorization to remove Device(s) from Google premises may be provided by Google via email.


Materials:


  • Pre-release Android SDK (including K release or other non-public release(s) as may be provided by Google) and related documentation or sample code

  • Pre-release Android System Image (including K release or other non-public release(s) as may be provided by Google), running on Device(s) listed above


Authorized Personnel and Locations:


Name of Company or Third Party Contractor

Employee Name and Title

Location

Crackle

Robby Kushner, Director of Product

10202 W. Washington Blvd., Culver City, CA 90232

Crackle

Brian Sheehan, Applications Producer

10202 W. Washington Blvd., Culver City, CA 90232     

Crackle     

Jared Weinman

10202 W. Washington Blvd., Culver City, CA 90232      

Crackle

Noah Fischbach, SVP of Product

10202 W. Washington Blvd., Culver City, CA 90232 

Crackle

Jason Borja, Executive Director

10202 W. Washington Blvd., Culver City, CA 90232      






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