662 lines
36 KiB
Text
662 lines
36 KiB
Text
IMPORTANT - READ CAREFULLY: This Software License Agreement ("Agreement")
|
||
is a legal agreement between Licensee (either an individual or a single
|
||
entity), (“Licensee”) and Avago Technologies General IP (Singapore) Pte.
|
||
Ltd., ("Broadcom") for the Licensed Code, (hereinafter defined).
|
||
|
||
By installing, copying, or otherwise using the Licensed Code (hereinafter
|
||
defined), Licensee agrees to be bound by the terms of this Agreement. If
|
||
Licensee does not agree to the terms of this Agreement, Licensee may not
|
||
install, copy or use the Licensed Code. The Licensed Code is licensed, not
|
||
sold.
|
||
|
||
NOW THEREFORE, in consideration of the foregoing and the mutual promises
|
||
and covenants contained in this Agreement the parties hereby agree as
|
||
follows:
|
||
|
||
1. Definitions
|
||
|
||
1.1. "Authorized Use for Source Code" means use of the Source Code solely
|
||
for the purpose of internally developing, modifying, integrating and
|
||
testing Licensee's Products to interface with Broadcom Devices
|
||
authorized for such integration, and for no other use or purpose.
|
||
|
||
1.2. "Authorized Use for Binary Code" means use of the Binary Code solely
|
||
for the purpose of internal evaluation or developing, integrating,
|
||
testing and use of Licensee's Products to interface with Broadcom
|
||
Devices and for no other application, use or purpose.
|
||
|
||
1.3. "Authorized Use for Internal Code" means use of the Internal Use Code
|
||
solely for the purpose of internally developing, modifying,
|
||
integrating and testing Licensee's Products to interface with Broadcom
|
||
Devices authorized for such integration, and for no other use or
|
||
purpose.
|
||
|
||
1.4. "Documentation" means explanatory and informational materials or
|
||
documentation concerning the Licensed Code, in printed or electronic
|
||
format, including without limitation, manuals, descriptions, user and/
|
||
or installation instructions, diagrams, printouts, listings,
|
||
flowcharts, and training materials, contained on visual media such as
|
||
paper or photographic film, or on other physical storage media in
|
||
machine-readable form. Documentation does not include any code.
|
||
|
||
1.5. "Licensed Code" means collectively all the software programs which are
|
||
owned or distributed by Broadcom and obtained by Licensee via download
|
||
from the Broadcom support web-pages through acceptance of this
|
||
Agreement. The Licensed Code is specifically referenced individually
|
||
in this Agreement as Source Code, Binary Code, or Internal Use Code.
|
||
|
||
1.6. "Licensee Products" means the hardware and software (and related
|
||
Licensee documentation) that will be developed or modified by or for
|
||
Licensee utilizing the Licensed Code for the purpose of interfacing or
|
||
being used with Broadcom Devices.
|
||
|
||
1.7. "Updates" means maintenance releases, bug fixes, errata or other
|
||
corrections, and minor improvements or modifications to the Licensed
|
||
Code which may be provided by Broadcom to Licensee from time to time
|
||
at Broadcom's sole discretion. Broadcom is under no obligation to
|
||
provide Updates or provide support and maintenance services to
|
||
Licensee or Licensee Subsequent Users.
|
||
|
||
1.8. "New Version" means significant changes, modifications, enhancements,
|
||
and/or functional improvements to the Licensed Code. New Versions are
|
||
made and generally distributed solely at the discretion of Broadcom.
|
||
Licensee must use the latest New Version of Licensed Code that is
|
||
available. Broadcom is under no obligation to port any development
|
||
work from one version to the latest New Version of Licensed Code.
|
||
|
||
1.9. "Broadcom Devices" means those Broadcom products intended for use with
|
||
the Licensed Code and purchased from Broadcom or its agents.
|
||
|
||
1.10. "Derivative Works" means: (a) for copyrightable or copyrighted
|
||
material, any translation (including translation into other computer
|
||
languages), port, modification, correction, addition, extension,
|
||
upgrade, improvement, compilation, abridgment or other form in which
|
||
an existing work may be recast, transformed or adapted; (b) for
|
||
patentable or patented material, any improvement thereon; and (c) for
|
||
material which is protected by trade secret, any new material derived
|
||
from such existing trade secret material, including new material
|
||
which may be protected by copyright, patent and/or trade secret.
|
||
|
||
1.11. "Intellectual Property Rights" means (by whatever name or term known
|
||
or designated) copyrights, trade secrets, patents, moral rights and
|
||
any other intellectual and industrial property and proprietary rights
|
||
(excluding trademarks) including registrations, applications,
|
||
renewals and extensions of such rights anywhere in the world.
|
||
|
||
1.12. "Binary Code" means the software programs provided for distribution
|
||
at the Broadcom support web-pages, in binary form, any other machine
|
||
readable materials, including, but not limited to, libraries, source
|
||
files, header files, and data files, any Updates and New Versions
|
||
provided by Broadcom.
|
||
|
||
1.13. "Source Code" means the software programs provided for distribution
|
||
at the Broadcom support web-pages, in source form including, but not
|
||
limited to, libraries, source files, header files, and data files,
|
||
and Updates and New Versions provided by Broadcom.
|
||
|
||
1.14. "Internal Use Code" means the software programs provided for
|
||
distribution at the Broadcom support web-pages, in source code or
|
||
object code format including, but not limited to, libraries, source
|
||
files, header files, and data files, and Updates and New Versions
|
||
provided by Broadcom that are only for Licensee's internal use.
|
||
|
||
1.15. "JRE Code" mean Oracle Corporation's JAVA SE Runtime Environment
|
||
Code.
|
||
|
||
1.16. "Subsequent User" means any user subsequent to Licensee, including
|
||
but not limited to, all Licensee customers, resellers, end users, and
|
||
OEMs.
|
||
|
||
1.17 "Taxes" shall mean all taxes, levies, imposts, duties, fines or other
|
||
charges of whatsoever nature however imposed by any country or any
|
||
subdivision or authority thereof in any way connected with this
|
||
Agreement or any instrument or agreement required hereunder, and all
|
||
interest, penalties or similar liabilities with respect thereto,
|
||
except such taxes as are imposed on or measured by a party's net
|
||
income or property.
|
||
|
||
|
||
2. Grant of Rights
|
||
|
||
2.1 Binary Code. Subject to the terms of this Agreement, Broadcom grants to
|
||
Licensee a non-exclusive, world-wide, revocable (for breach in
|
||
accordance with Section 7), non-transferable limited license, without
|
||
the right to sublicense except as expressly provided herein, solely to:
|
||
|
||
(a) Use the Binary Code and related Documentation solely for the Authorized
|
||
Use for Binary Code and only with Broadcom Devices
|
||
|
||
(b) Make copies of the Binary Code and related Documentation to support the
|
||
Authorized Use for Binary Code and for archival and backup purposes in
|
||
support of the Authorized Use for Binary Code only with Broadcom
|
||
Devices;
|
||
|
||
(c) Distribute the Binary Code as incorporated in Licensee's Products or
|
||
for use with Broadcom Devices to its Subsequent Users;
|
||
|
||
(d) Distribute the Documentation related to Binary Code only for use with
|
||
Broadcom Devices;
|
||
|
||
(e) Sublicense the rights provided in paragraphs (a) and (b) above in
|
||
accordance with the terms provided in this Agreement to contract
|
||
manufacturers ("CMs") and/or original design manufacturers ("ODMs"),
|
||
in each case meeting the requirements of Section 3.1(d) below for the
|
||
purpose of manufacturing Licensee's Products; and (f) Sublicense the
|
||
rights provided in paragraphs (b) and (c) in accordance with the terms
|
||
provided in this Agreement to Subsequent Users who are not end users
|
||
for the purpose of distributing and supporting Licensee's Product.
|
||
|
||
2.2 Source Code. Subject to the terms of this Agreement, Broadcom grants to
|
||
Licensee a non-exclusive, worldwide, revocable (for breach in
|
||
accordance with Section 7), non-transferable limited license, without
|
||
the right to sublicense except as expressly provided herein, solely to:
|
||
|
||
(a) Use the Source Code and related Documentation solely for the Authorized
|
||
Use for Source Code and only with Broadcom Devices;
|
||
|
||
(b) Make copies of the Source Code and related Explanatory Material to
|
||
support the Authorized Use for Source Code only and for archival and
|
||
backup purposes in support of the Authorized use for Source Code only
|
||
with Broadcom Devices;
|
||
|
||
(c) Modify and prepare Derivative Works of the Source Code for the
|
||
Authorized Use for Source Code and only for use with Broadcom Devices;
|
||
|
||
(d) Distribute the binary form only of any authorized Derivative Work of
|
||
the Source Code ("Licensee Binary Derivative") and necessary portions
|
||
of the related Documentation only for use with Broadcom Devices; and
|
||
|
||
(e) Sublicense the rights granted in paragraph (d) above in accordance with
|
||
the terms provided in this Agreement to Subsequent Users who are not
|
||
end users for the purpose of distributing and supporting Licensee's
|
||
Product.
|
||
|
||
2.3 Internal Use Code. Subject to the terms of this Agreement, Broadcom
|
||
grants to Licensee a non-exclusive, worldwide, revocable (for breach in
|
||
accordance with Section 7), non-transferable limited license, without
|
||
the right to sublicense or distribute, solely to:
|
||
|
||
(a) Use the Internal Use Code and related Documentation solely for the
|
||
Authorized Use for Internal Code and only with Broadcom Devices; and
|
||
|
||
(b) Make copies of the Internal Use Code and related Documentation to
|
||
support the Authorized Use for Internal Code only and for archival and
|
||
backup purposes in support of the Authorized use for Internal Code only
|
||
with Broadcom Devices.
|
||
|
||
2.4 Without limiting Section 4, Licensee may exercise the foregoing rights
|
||
directly and/or indirectly through its employees and contractors, who
|
||
are bound by terms at least as restrictive as this Agreement.
|
||
|
||
|
||
3. License Restrictions
|
||
|
||
3.1. Binary Code. The Licenses granted in Section 2.1 for Binary Code and
|
||
related Documentation are subject to the following restrictions:
|
||
|
||
(a) Licensee shall not use the Binary Code and related Documentation for
|
||
any purpose other than as expressly provided in Article 2;
|
||
|
||
(b) Licensee shall reproduce all copyright notices and other proprietary
|
||
markings or legends contained within or on the Binary Code and related
|
||
Documentation on any copies it makes; and
|
||
|
||
(c) Licensee shall not distribute or disclose the Binary Code and related
|
||
Documentation except pursuant to an agreement with terms at least as
|
||
protective of the Binary Code as the terms of this Agreement. Licensee
|
||
shall not, and shall not allow its Subsequent Users to, disassemble,
|
||
de-compile, or reverse engineer the Binary Code.
|
||
|
||
(d) Licensee may grant the sublicense set forth in Section 2.1(e) to its
|
||
CMs and ODMs, provided that each such CM and ODM agrees to abide by the
|
||
terms and conditions of this Agreement and Licensee shall remain
|
||
responsible for any failure by its CMs and ODM to comply with the terms
|
||
and conditions of this Agreement.
|
||
|
||
3.2. Source Code. The Licenses granted in Section 2.2 for Source Code and
|
||
related Documentation are subject to the following restrictions:
|
||
|
||
(a) Licensee shall not use the Source Code and related Documentation for
|
||
any purpose other than as expressly provided in Article 2;
|
||
|
||
(b) Licensee shall reproduce all copyright notices and other proprietary
|
||
markings or legends contained within or on the Source Code and related
|
||
Documentation on any copies it makes;
|
||
|
||
(c) Licensee shall not distribute or disclose any Source Code and related
|
||
Documentation to any Subsequent Users or third parties, without the
|
||
express written consent of Broadcom;
|
||
|
||
(d) Licensee shall not knowingly infringe upon the intellectual property
|
||
rights of any third party when making Derivative Works to the Source
|
||
Code;
|
||
|
||
(e) Licensee shall not disassemble, reverse-engineer, or decompile the
|
||
Source Code, except for making authorized Derivative Works; and
|
||
|
||
(f) Licensee shall not distribute or disclose the Licensee Binary
|
||
Derivative except pursuant to an agreement with terms at least as
|
||
protective as those in this Agreement protecting Binary Code. Licensee
|
||
shall not, and shall not allow its Subsequent Users to, disassemble,
|
||
de-compile, or reverse engineer the Licensee Binary Derivative.
|
||
|
||
3.3. Internal Use Code. The Licenses granted in Section 2.3 for Internal
|
||
Use Code and related Documentation are subject to the following
|
||
restrictions:
|
||
|
||
(a) Licensee shall not use the Internal Use Code and related Documentation
|
||
for any purpose other than as expressly provided in Article 2;
|
||
|
||
(b) Licensee shall reproduce all copyright notices and other proprietary
|
||
markings or legends contained within or on the Internal Use Code and
|
||
related Documentation on any copies it makes;
|
||
|
||
(c) Licensee shall not distribute or disclose any Internal Use Code and
|
||
related Documentation to any Subsequent Users or third parties, without
|
||
the express written consent of Broadcom; and
|
||
|
||
(d) Licensee shall not disassemble, reverse-engineer, or decompile the
|
||
Internal Use Code.
|
||
|
||
3.4. Derivative Works of Source Code Made by Licensee. Subject to
|
||
Broadcom's rights in the underlying Source Code, Licensee shall own
|
||
all right, title and interest in and to the Derivative Works (both
|
||
binary and source format) it makes from Source Code, provided that
|
||
such Derivative Works are not made in breach of this Agreement.
|
||
Licensee shall not be required to disclose its Derivative Works of the
|
||
Source Code to Broadcom. Broadcom shall have no obligations whatsoever
|
||
to support, maintain, contribute to, or provide Updates, New Versions
|
||
or any modifications to Licensee Derivative Works of the Source Code
|
||
and shall have no liability whatsoever for such Derivative Works. In
|
||
the event Licensee requests Broadcom's input regarding Licensee
|
||
Derivative Works of Source Code and plans to disclose such Derivative
|
||
Works to Broadcom, a separate written agreement shall first be
|
||
executed by the parties.
|
||
|
||
3.5. Broadcom Derivative Works. Nothing contained herein shall prevent
|
||
Broadcom from creating any Derivative Works of its Source Code at any
|
||
time. Licensee further agrees that Broadcom may independently create a
|
||
Derivative Work similar to or in competition with the Licensee
|
||
Derivative Work of the Source Code and may use that Derivative Work
|
||
for any purpose. Licensee grants Broadcom a Covenant Not to Sue for
|
||
any independently developed Derivative Works created by Broadcom for
|
||
its own Source Code that Licensee may believe or claim infringes on
|
||
any of Licensee's Intellectual Property Rights relating to the
|
||
Licensee Derivative Works of the Source Code.
|
||
|
||
3.6. U.S. Government Subsequent Users. All Licensed Code and Documentation
|
||
qualify as "commercial items," as that term is defined at
|
||
48 C.F.R. 2.101, consisting of "commercial computer software" and
|
||
"commercial computer software documentation" as such terms are used in
|
||
48 C.F.R. 12.212. Consistent with 48 CFR 52.227-19, 48 C.F.R.12.212
|
||
and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to
|
||
U.S. Government end users such Binary Code with only those rights set
|
||
forth herein that apply to non-governmental end users. Use of such
|
||
Binary Code constitutes agreement by the government entity that the
|
||
computer software and computer software documentation is commercial
|
||
and constitutes acceptance of the rights and restrictions herein.
|
||
|
||
3.7. No Implied Licenses. Except for the express and limited licenses
|
||
granted herein for specific purposes, no rights or licenses are
|
||
granted by Broadcom under this Agreement, by implication, inducement,
|
||
estoppel or otherwise with respect to any proprietary information or
|
||
to any patents, copyrights, trade secrets, trademarks, maskworks or
|
||
other Intellectual Property Rights owned or controlled by Broadcom.
|
||
Any further licenses must be express, in writing and signed by an
|
||
authorized representative of Broadcom.
|
||
|
||
3.8. Injunctive Relief. In the event of a breach by Licensee of Section 2
|
||
or 3, Broadcom shall be entitled to applicable injunctive relief and
|
||
to all remedies available in equity and law to prevent Licensee from
|
||
disassembling, de-compiling, reverse engineering, disclosing or using
|
||
the Licensed Code in whole or in part.
|
||
|
||
3.9. Licensed Code Containing JRE. Certain Licensed Code may contain JRE.
|
||
Use of the JRE is restricted by JRE licensing terms to General Purpose
|
||
Desktop Computers and Servers, as defined below. Licensee may seek its
|
||
own license for the JRE directly with the owner, if it deems
|
||
necessary. "General Purposes Desktop Computers and Servers" under JRE
|
||
licensing terms is defined as "computers, including desktop, laptop
|
||
and tablet computers, or servers, used for general computing functions
|
||
under end user control (such as but not specifically limited to email,
|
||
general purpose Internet browsing and office suite productivity
|
||
tools)". The full terms and conditions for use of the JRE are
|
||
available at: http://www.oracle.com/technetwork/java/javase/terms/license/index.html.
|
||
|
||
3.10. Notwithstanding anything to the contrary in this Agreement, to the
|
||
extent there is a conflict between this Agreement provisions and any
|
||
applicable license to open source technology, the provisions of the
|
||
open source license shall take precedence and be followed, but only
|
||
to the minimum extent reasonably necessary to comply with the
|
||
applicable open source license.
|
||
|
||
|
||
4. Confidentiality
|
||
|
||
4.1 Licensee agrees to limit access to the Licensed Code and Documentation
|
||
to employees and contractors of Licensee (which may include, without
|
||
limitation, contractors retained by Licensee to maintain or modify the
|
||
Licensed Code and Documentation on behalf of Licensee) having a need to
|
||
access or know the Licensed Code and Documentation and who have
|
||
executed nondisclosure agreements with Licensee obligating them to
|
||
maintain the confidentiality of the Licensed Code and Documentation.
|
||
|
||
4.2 Licensee shall hold in confidence the Licensed Code and Documentation
|
||
as Broadcom's confidential information ("Confidential Information") and
|
||
shall use the Broadcom Code and Documentation only as expressly
|
||
provided in Section 2, and protect the confidentiality of such
|
||
Confidential Information with the same degree of care as Licensee uses
|
||
to protect its own confidential or proprietary information of great
|
||
commercial value, but in no event less than reasonable care and for no
|
||
less than three (3) years from the date of disclosure.
|
||
|
||
4.3 Licensee agrees to notify Broadcom immediately after Licensee becomes
|
||
aware of any suspected misuse or unauthorized disclosure of any
|
||
Confidential Information. The obligations of confidentiality imposed on
|
||
Licensee under this Section 4 shall not apply or shall cease to apply
|
||
to any of such Confidential Information that Licensee clearly
|
||
establishes: (i) was already rightfully in the possession of Licensee
|
||
at the time of disclosure as evidenced by records of Licensee; (ii) is
|
||
or becomes publicly available through no act or omission of Licensee;
|
||
(iii) is rightfully received by Licensee from a third party without an
|
||
obligation of confidentiality; (iv) is independently developed by
|
||
Licensee's employees or contractors without use of or access to the
|
||
information; or (v) is approved for unrestricted disclosure in writing
|
||
by an authorized representative of Broadcom. Broadcom makes no warranty
|
||
as to the accuracy of any Confidential Information, which is furnished
|
||
"AS IS" with all faults.
|
||
|
||
|
||
5. Ownership of Code by Broadcom, Fees, and Taxes
|
||
|
||
5.1 Broadcom (or its licensors) reserve all right, title, ownership and
|
||
interest in and to the Licensed Code and Documentation existing prior
|
||
to and after the Effective Date of this Agreement, or created or
|
||
generated by Broadcom (or its licensors) at any time, subject to any
|
||
licenses granted. Broadcom (or its licensors) reserves all right,
|
||
title, ownership and interest in and to any Derivative Works it creates
|
||
at any time to the Licensed Code and Documentation, subject to any
|
||
licenses granted.
|
||
|
||
5.2 Fees and Taxes. No fees are due in connection with this Agreement
|
||
unless separately specified by Broadcom. If any such fees are
|
||
separately specified in writing, the following applies:
|
||
|
||
5.2.1 Payment is due by Licensee upon download, at time of purchase, or no
|
||
later than within thirty (30) days of date of Broadcom invoice
|
||
therefore, as designated by Broadcom All payments shall be made in
|
||
U.S. currency unless otherwise agreed. If at any time, Licensee is
|
||
delinquent in the payment of any invoice, or is otherwise in breach
|
||
of this Agreement, Broadcom may, at its discretion, and without
|
||
prejudice to its other rights, withhold delivery (including partial
|
||
delivery) of any order or may, at its option, require Licensee to
|
||
prepay for further deliveries. Any sum not paid by Licensee, when
|
||
due, shall bear interest until paid at a rate of 1.5% per month
|
||
(18% per annum) or the maximum rate permitted by law, whichever is
|
||
less.
|
||
|
||
5.2.2 All payments or reimbursements due under this Agreement and any
|
||
instrument or agreement required hereunder shall be made free and
|
||
clear and without deduction for any and all present and future Taxes.
|
||
Payments due to Broadcom under this Agreement and any instrument or
|
||
agreement required hereunder shall be increased so that amounts
|
||
received by Broadcom, after provisions for Taxes and all Taxes on
|
||
such increase, will be equal to the amounts required under this
|
||
Agreement and any instrument or agreement required hereunder if no
|
||
Taxes were due on such payments.
|
||
|
||
5.2.3 The Licensee shall indemnify Broadcom for the full amount of Taxes
|
||
attributable to the provision of products or services under this
|
||
Agreement, and any liabilities (including penalties, interest and
|
||
expenses) arising from such Taxes, within thirty (30) days from any
|
||
written demand by Broadcom. The Licensee shall provide evidence that
|
||
all applicable Taxes have been paid to the appropriate taxing
|
||
authority by delivering to Broadcom receipts or notarized copies
|
||
thereof within thirty (30) days after the due date for such tax
|
||
payments.
|
||
|
||
5.2.4 Without prejudice to the survival of any other Agreement of Licensee
|
||
hereunder, the obligations of Licensee contained in this section
|
||
shall survive the payment in full of all payments hereunder.
|
||
|
||
|
||
6. Support
|
||
|
||
(a) Broadcom may provide the following support services for the Licensed
|
||
Code to the extent Broadcom deems reasonable: Updates if and when
|
||
released and errata in Broadcom's sole discretion. Broadcom shall not
|
||
be responsible for any other support or maintenance of Licensed Code to
|
||
Licensee or its Subsequent Users, unless otherwise agreed to in
|
||
writing. Broadcom is under no obligation to provide support services
|
||
and may discontinue support services at any time. Broadcom will not
|
||
provide support for modified Licensed Code or Licensee's Derivative
|
||
Works of the Source Code.
|
||
|
||
(b) Any Updates to the Licensed Code provided by Broadcom (which shall only
|
||
be provided by Broadcom in its sole discretion) shall be governed by
|
||
the terms of this Agreement.
|
||
|
||
(c) If Licensee finds what Licensee considers an error in the Licensed
|
||
Code, Licensee will notify Broadcom so that Broadcom can, in its sole
|
||
discretion, make corrections to the Licensed Code or to future
|
||
revisions of the Licensed Code.
|
||
|
||
|
||
7. Term and Termination
|
||
|
||
7.1 Term. The term of this Agreement is five (5) years from the Effective
|
||
Date, subject to renewal upon mutual agreement of the parties.
|
||
|
||
7.2 Termination for Breach. If Licensee breaches any material provision of
|
||
this Agreement, Broadcom shall have the right to terminate this
|
||
Agreement, including all licenses granted hereunder, in addition to any
|
||
and all other remedies available at law or equity, unless Licensee
|
||
cures such breach within sixty (60) days ("Cure Period") after
|
||
receiving written notice of the breach by Broadcom. Licensee shall make
|
||
best efforts to cure the material breach in the least amount of time
|
||
possible within the Cure Period.
|
||
|
||
7.3 Insolvency. If either party: (a) becomes substantially insolvent;
|
||
(b) makes an assignment for the benefit of creditors; (c) files or has
|
||
filed against it a petition in bankruptcy or seeking reorganization;
|
||
(d) has a receiver appointed; or (e) institutes any proceedings for
|
||
liquidation or winding up or have such proceedings instituted against
|
||
it; then the other party may, in addition to other rights and remedies
|
||
it may have, terminate this Agreement immediately by written notice.
|
||
|
||
7.4 Consequences. Upon termination or expiration of this Agreement for any
|
||
reason whatsoever, the licenses, rights, and covenants granted
|
||
hereunder and any obligations imposed hereunder shall cease except as
|
||
otherwise expressly set forth herein as surviving termination or
|
||
expiration.
|
||
|
||
7.5 Return of Confidential Information. Upon expiration or termination of
|
||
this Agreement for any reason or upon written request by Broadcom,
|
||
Licensee agrees to promptly return to Broadcom or, at Broadcom's
|
||
request, destroy and certify by an officer of Licensee in writing the
|
||
destruction of, all Broadcom Confidential Information furnished to
|
||
Licensee, including all Licensed Code and Documentation.
|
||
|
||
7.6 Survival of Licenses. Any Licensed Code and Documentation distributed
|
||
by Licensee prior to the effective date of any termination, expiration,
|
||
breach, or cancellation of this Agreement, shall remain licensed
|
||
(including any Licensed Code in inventory, manufactured in, or work in
|
||
progress with Licensee products) under the terms of this Agreement.
|
||
Licensee may retain an archival copy of portions of the Broadcom
|
||
Confidential Information, including Licensed Code and Documentation,
|
||
necessary for Licensee to provide ongoing technical support to
|
||
Subsequent Users using the Licensed Code ("Archival Materials") after
|
||
termination, expiration or cancellation of this Agreement. Such
|
||
Archival Materials may not be used for any other purpose without the
|
||
written consent from Broadcom. Licensee shall keep such Archival
|
||
Materials confidential for an additional five (5) years from the date
|
||
of termination, expiration, or cancellation of this Agreement,
|
||
regardless of when the Broadcom Confidential Information was disclosed.
|
||
|
||
7.7 Survival. In the event of expiration or termination of this Agreement
|
||
for any reason, the following sections of this Agreement shall survive:
|
||
1, 3, 4, 5, 7, 8, 9, and 10. Termination will not prejudice either
|
||
party to require performance of any obligation due at the time of
|
||
termination. All end user licenses in effect and in compliance with the
|
||
Agreement prior to effective termination or expiration shall survive
|
||
and continue in full force and effect in accordance with their terms
|
||
and Licensee may continue to perform its obligations thereunder,
|
||
including support obligations.
|
||
|
||
|
||
8. Disclaimer of All Warranties
|
||
|
||
8.1 THE PARTIES AGREE THAT BROADCOM FURNISHES THE LICENSED CODE AND
|
||
DOCUMENTATION TO LICENSEE "AS IS", UNSUPPORTED, WITHOUT WARRANTY OF ANY
|
||
KIND. BROADCOM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
|
||
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
|
||
PURPOSE AND NON-INFRINGEMENT, INCLUDING ANY THAT MAY ARISE FROM A
|
||
COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. BROADCOM
|
||
SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR
|
||
NONCONFORMITY IN THE LICENSED CODE OR DOCUMENTATION. BROADCOM MAKES NO
|
||
WARRANTY OR REPRESENTATION THAT THE LICENSED CODE OR DOCUMENTATION WILL
|
||
MEET LICENSEE'S REQUIREMENTS OR WILL WORK IN COMBINATION WITH ANY
|
||
HARDWARE OR SOFTWARE APPLICATION.
|
||
|
||
8.2 BROADCOM DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S
|
||
USE OF THE LICENSED CODE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION,
|
||
MILITARY, OR OTHER HIGH RISK DEVICE OR APPLICATION. LICENSEE REPRESENTS
|
||
AND WARRANTS THAT IT WILL NOT USE THE LICENSED CODE IN ANY MEDICAL,
|
||
NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER HIGH RISK DEVICE OR
|
||
APPLICATION. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD BROADCOM
|
||
HARMLESS AGAINST ANY LOSS, LIABILITY, OR DAMAGE OF ANY KIND THAT
|
||
BROADCOM INCURS IN CONNECTION WITH BREACH OF THE WARRANTY IN THIS
|
||
SECTION 8.2.
|
||
|
||
8.3 BROADCOM DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S
|
||
CREATION AND USE OF DERIVATIVE WORKS OF THE SOURCE CODE. LICENSEE SHALL
|
||
INDEMNIFY, DEFEND, AND HOLD BROADCOM HARMLESS AGAINST ANY LOSS,
|
||
LIABILITY, OR DAMAGE OF ANY KIND THAT BROADCOM INCURS IN CONNECTION
|
||
WITH LICENSEE'S DERIVATIVE WORKS OF SOURCE CODE.
|
||
|
||
|
||
9. Limitation of Liability
|
||
|
||
IN NO EVENT SHALL BROADCOM, ITS EMPLOYEES, AFFILIATES OR SUPPLIERS BE
|
||
LIABLE FOR ANY LOST PROFITS, REVENUE, SALES OR DATA OR COSTS OF PROCUREMENT
|
||
OF SUBSTITUTE GOODS OR SERVICES, INTERRUPTION, LOSS OF BUSINESS INFORMATION
|
||
OR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC OR
|
||
PUNITIVE DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT,
|
||
STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY OF LIABILITY, ARISING OUT OF
|
||
THE USE OR INABILITY TO USE THE LICENSED CODE OR DOCUMENTATION, EVEN IF
|
||
BROADCOM OR ITS EMPLOYEES, SUPPLIERS OR AFFILIATES ARE ADVISED OF THE
|
||
POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE APPLICABLE JURISDICTION
|
||
DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, BUT DOES ALLOW
|
||
LIABILITY TO BE LIMITED, THE LIABILITY OF BROADCOM, ITS EMPLOYEES,
|
||
AFFILIATES, OR SUPPLIERS IN SUCH CASES, SHALL BE LIMITED TO
|
||
$100 US DOLLARS.
|
||
|
||
|
||
10. General
|
||
|
||
10.1 Assignment. Licensee shall not assign this Agreement or any of its
|
||
rights or delegate any of its duties under this Agreement without the
|
||
prior written consent of Broadcom. Subject to the foregoing, this
|
||
Agreement will be binding upon, enforceable by, and inure to the
|
||
benefit of the parties and their respective successors and assigns.
|
||
Any attempted assignment in violation of this Section 10.1 shall be
|
||
null and void.
|
||
|
||
10.2 Governing Law. This Agreement shall be construed and interpreted in
|
||
accordance with the law of the State of California without reference
|
||
to its conflicts of law principles.
|
||
|
||
10.3 Exclusive Jurisdiction. All disputes arising out of or related to this
|
||
Agreement will be subject to the exclusive jurisdiction and venue of
|
||
the California state courts of Santa Clara County, California in
|
||
United States District Court for the Northern District of California,
|
||
and the parties consent to the personal and exclusive jurisdiction of
|
||
these courts.
|
||
|
||
10.4 Export Control. Licensee shall follow all export control laws and
|
||
regulations relating to the Licensed Code and Documentation. Licensee
|
||
hereby acknowledges responsibility for compliance with all applicable
|
||
US and local laws and regulations related to import and export and
|
||
acknowledges and agrees that the Licensed Code is subject to the U.S.
|
||
Export Administration Regulations. Diversion contrary to U.S. law is
|
||
prohibited. Licensee agrees that the Licensed Code is being or will be
|
||
acquired for, shipped, transferred, or re-exported, directly or
|
||
indirectly, to prohibited or embargoed countries, nor be used for any
|
||
prohibited end-use, such as nuclear activities, chemical/biological
|
||
weapons, or missile projects, unless expressly authorized by the U.S.
|
||
Government. Prohibited countries are set forth in the Supplement 1 to
|
||
Part 740 of the U.S. Export Administration Regulations. Countries
|
||
currently subject to U.S. embargo include: Cuba, Iran, N. Korea, Sudan
|
||
and Syria. This list is subject to change without further notice from
|
||
Broadcom and Licensee understands that compliance with the list as it
|
||
exists in fact, is required. Licensee assumes sole responsibility for
|
||
obtaining any/all licenses required for export or re-export. All ECCN
|
||
and CCATS numbers and License Exception information are subject to
|
||
change without notice. Modification in any way nullifies the
|
||
classification. It is therefore Licensee’s obligation as an exporter
|
||
to verify such information and comply with the then currently
|
||
applicable regulations. Any data provided by Broadcom is for
|
||
informational purposes only. Broadcom makes no representation or
|
||
warranty as to the accuracy or reliability of any classifications or
|
||
numbers. Any use of such classifications or numbers by Licensee is
|
||
without recourse to Broadcom and is at Licensee’s own risk. Broadcom
|
||
is in no way responsible for any damages, whether direct, indirect,
|
||
consequential, incidental or otherwise, suffered by Licensee as a
|
||
result of using or relying upon such classifications or numbers for
|
||
any purpose whatsoever. Licensee agrees to consult the EAR, the
|
||
Bureau of Industry and Security's Export Counseling Division, and
|
||
other appropriate sources before distributing, importing, or using
|
||
Broadcom products. Licensee may request software classification
|
||
information from Broadcom. If requested, Customer agrees to sign
|
||
written assurances and other export-related documents as may be
|
||
required by Broadcom.
|
||
|
||
10.5 Waiver. No failure or delay on the part of either party in the
|
||
exercise of any right or privilege hereunder shall operate as a waiver
|
||
thereof or of the exercise of any other right or privilege hereunder,
|
||
nor shall any single or partial exercise of any such right or
|
||
privilege preclude other or further exercise thereof or of any other
|
||
right or privilege.
|
||
|
||
10.6 Notice. Any notice or claim provided for herein to Broadcom shall be
|
||
in writing and addressed as set forth below, and shall be given (i) by
|
||
personal delivery, effective upon delivery, or (ii) by first class
|
||
mail, postage prepaid, addressed as set forth below, effective one (1)
|
||
business day after proper deposit in the mail to Broadcom, 1320 Ridder
|
||
Park Drive, San Jose, California 95131, USA; Attn. Legal Department -
|
||
Important Legal Notice.
|
||
|
||
10.7 Severability. If any term, condition, or provision of this Agreement,
|
||
or portion of this Agreement, is found to be invalid, unlawful or
|
||
unenforceable to any extent, the parties will endeavor in good faith
|
||
to agree to such amendments that will preserve, as far as possible,
|
||
the intentions expressed in this Agreement. Such invalid term,
|
||
condition or provision will be severed from the remaining terms,
|
||
conditions and provisions, which will continue to be valid and
|
||
enforceable to the fullest extent permitted by law.
|
||
|
||
10.8 Other Rights. Nothing contained in this Agreement shall be construed
|
||
as conferring by implication, estoppel, or otherwise upon either party
|
||
or any third party any license or other right except, solely as to the
|
||
parties hereto, the rights expressly granted hereunder.
|
||
|
||
10.9 Integration; Modification. This Agreement embodies the final, complete
|
||
and exclusive statement of the terms agreed upon by the parties with
|
||
respect to the subject matter hereof and supersedes any prior or
|
||
contemporaneous representations, descriptions, courses of dealing, or
|
||
agreements in regard to such subject matter. No amendment or
|
||
modification of this Agreement shall be valid or binding upon the
|
||
parties unless stated in writing and signed by an authorized
|
||
representative of each party.
|
||
|
||
10.10 Publicity. All publicity concerning this transaction referring to the
|
||
other party shall require the other party's prior written approval
|
||
which shall not be unreasonably withheld.
|
||
|
||
10.11 Relationship of the Parties. The relationship of the parties hereto
|
||
is that of independent contractors. Neither party, nor its agents or
|
||
employees, shall be deemed to be the agent, employee, joint venture
|
||
partner, partner or fiduciary of the other party. Neither party shall
|
||
have the right to bind the other party, transact any business on
|
||
behalf of or in the name of the other party, or incur any liability
|
||
for or on behalf of the other party.
|