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IMPORTANT - READ CAREFULLY: This Software License Agreement ("Agreement")
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is a legal agreement between Licensee (either an individual or a single
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entity), (“Licensee”) and Avago Technologies General IP (Singapore) Pte.
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Ltd., ("Broadcom") for the Licensed Code, (hereinafter defined).
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By installing, copying, or otherwise using the Licensed Code (hereinafter
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defined), Licensee agrees to be bound by the terms of this Agreement. If
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Licensee does not agree to the terms of this Agreement, Licensee may not
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install, copy or use the Licensed Code. The Licensed Code is licensed, not
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sold.
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NOW THEREFORE, in consideration of the foregoing and the mutual promises
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and covenants contained in this Agreement the parties hereby agree as
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follows:
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1. Definitions
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1.1. "Authorized Use for Source Code" means use of the Source Code solely
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for the purpose of internally developing, modifying, integrating and
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testing Licensee's Products to interface with Broadcom Devices
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authorized for such integration, and for no other use or purpose.
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1.2. "Authorized Use for Binary Code" means use of the Binary Code solely
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for the purpose of internal evaluation or developing, integrating,
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testing and use of Licensee's Products to interface with Broadcom
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Devices and for no other application, use or purpose.
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1.3. "Authorized Use for Internal Code" means use of the Internal Use Code
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solely for the purpose of internally developing, modifying,
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integrating and testing Licensee's Products to interface with Broadcom
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Devices authorized for such integration, and for no other use or
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purpose.
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1.4. "Documentation" means explanatory and informational materials or
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documentation concerning the Licensed Code, in printed or electronic
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format, including without limitation, manuals, descriptions, user and/
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or installation instructions, diagrams, printouts, listings,
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flowcharts, and training materials, contained on visual media such as
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paper or photographic film, or on other physical storage media in
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machine-readable form. Documentation does not include any code.
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1.5. "Licensed Code" means collectively all the software programs which are
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owned or distributed by Broadcom and obtained by Licensee via download
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from the Broadcom support web-pages through acceptance of this
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Agreement. The Licensed Code is specifically referenced individually
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in this Agreement as Source Code, Binary Code, or Internal Use Code.
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1.6. "Licensee Products" means the hardware and software (and related
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Licensee documentation) that will be developed or modified by or for
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Licensee utilizing the Licensed Code for the purpose of interfacing or
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being used with Broadcom Devices.
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1.7. "Updates" means maintenance releases, bug fixes, errata or other
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corrections, and minor improvements or modifications to the Licensed
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Code which may be provided by Broadcom to Licensee from time to time
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at Broadcom's sole discretion. Broadcom is under no obligation to
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provide Updates or provide support and maintenance services to
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Licensee or Licensee Subsequent Users.
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1.8. "New Version" means significant changes, modifications, enhancements,
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and/or functional improvements to the Licensed Code. New Versions are
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made and generally distributed solely at the discretion of Broadcom.
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Licensee must use the latest New Version of Licensed Code that is
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available. Broadcom is under no obligation to port any development
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work from one version to the latest New Version of Licensed Code.
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1.9. "Broadcom Devices" means those Broadcom products intended for use with
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the Licensed Code and purchased from Broadcom or its agents.
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1.10. "Derivative Works" means: (a) for copyrightable or copyrighted
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material, any translation (including translation into other computer
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languages), port, modification, correction, addition, extension,
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upgrade, improvement, compilation, abridgment or other form in which
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an existing work may be recast, transformed or adapted; (b) for
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patentable or patented material, any improvement thereon; and (c) for
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material which is protected by trade secret, any new material derived
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from such existing trade secret material, including new material
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which may be protected by copyright, patent and/or trade secret.
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1.11. "Intellectual Property Rights" means (by whatever name or term known
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or designated) copyrights, trade secrets, patents, moral rights and
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any other intellectual and industrial property and proprietary rights
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(excluding trademarks) including registrations, applications,
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renewals and extensions of such rights anywhere in the world.
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1.12. "Binary Code" means the software programs provided for distribution
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at the Broadcom support web-pages, in binary form, any other machine
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readable materials, including, but not limited to, libraries, source
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files, header files, and data files, any Updates and New Versions
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provided by Broadcom.
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1.13. "Source Code" means the software programs provided for distribution
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at the Broadcom support web-pages, in source form including, but not
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limited to, libraries, source files, header files, and data files,
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and Updates and New Versions provided by Broadcom.
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1.14. "Internal Use Code" means the software programs provided for
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distribution at the Broadcom support web-pages, in source code or
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object code format including, but not limited to, libraries, source
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files, header files, and data files, and Updates and New Versions
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provided by Broadcom that are only for Licensee's internal use.
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1.15. "JRE Code" mean Oracle Corporation's JAVA SE Runtime Environment
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Code.
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1.16. "Subsequent User" means any user subsequent to Licensee, including
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but not limited to, all Licensee customers, resellers, end users, and
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OEMs.
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1.17 "Taxes" shall mean all taxes, levies, imposts, duties, fines or other
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charges of whatsoever nature however imposed by any country or any
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subdivision or authority thereof in any way connected with this
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Agreement or any instrument or agreement required hereunder, and all
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interest, penalties or similar liabilities with respect thereto,
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except such taxes as are imposed on or measured by a party's net
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income or property.
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2. Grant of Rights
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2.1 Binary Code. Subject to the terms of this Agreement, Broadcom grants to
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Licensee a non-exclusive, world-wide, revocable (for breach in
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accordance with Section 7), non-transferable limited license, without
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the right to sublicense except as expressly provided herein, solely to:
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(a) Use the Binary Code and related Documentation solely for the Authorized
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Use for Binary Code and only with Broadcom Devices
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(b) Make copies of the Binary Code and related Documentation to support the
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Authorized Use for Binary Code and for archival and backup purposes in
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support of the Authorized Use for Binary Code only with Broadcom
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Devices;
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(c) Distribute the Binary Code as incorporated in Licensee's Products or
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for use with Broadcom Devices to its Subsequent Users;
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(d) Distribute the Documentation related to Binary Code only for use with
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Broadcom Devices;
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(e) Sublicense the rights provided in paragraphs (a) and (b) above in
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accordance with the terms provided in this Agreement to contract
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manufacturers ("CMs") and/or original design manufacturers ("ODMs"),
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in each case meeting the requirements of Section 3.1(d) below for the
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purpose of manufacturing Licensee's Products; and (f) Sublicense the
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rights provided in paragraphs (b) and (c) in accordance with the terms
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provided in this Agreement to Subsequent Users who are not end users
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for the purpose of distributing and supporting Licensee's Product.
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2.2 Source Code. Subject to the terms of this Agreement, Broadcom grants to
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Licensee a non-exclusive, worldwide, revocable (for breach in
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accordance with Section 7), non-transferable limited license, without
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the right to sublicense except as expressly provided herein, solely to:
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(a) Use the Source Code and related Documentation solely for the Authorized
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Use for Source Code and only with Broadcom Devices;
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(b) Make copies of the Source Code and related Explanatory Material to
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support the Authorized Use for Source Code only and for archival and
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backup purposes in support of the Authorized use for Source Code only
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with Broadcom Devices;
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(c) Modify and prepare Derivative Works of the Source Code for the
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Authorized Use for Source Code and only for use with Broadcom Devices;
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(d) Distribute the binary form only of any authorized Derivative Work of
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the Source Code ("Licensee Binary Derivative") and necessary portions
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of the related Documentation only for use with Broadcom Devices; and
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(e) Sublicense the rights granted in paragraph (d) above in accordance with
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the terms provided in this Agreement to Subsequent Users who are not
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end users for the purpose of distributing and supporting Licensee's
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Product.
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2.3 Internal Use Code. Subject to the terms of this Agreement, Broadcom
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grants to Licensee a non-exclusive, worldwide, revocable (for breach in
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accordance with Section 7), non-transferable limited license, without
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the right to sublicense or distribute, solely to:
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(a) Use the Internal Use Code and related Documentation solely for the
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Authorized Use for Internal Code and only with Broadcom Devices; and
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(b) Make copies of the Internal Use Code and related Documentation to
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support the Authorized Use for Internal Code only and for archival and
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backup purposes in support of the Authorized use for Internal Code only
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with Broadcom Devices.
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2.4 Without limiting Section 4, Licensee may exercise the foregoing rights
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directly and/or indirectly through its employees and contractors, who
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are bound by terms at least as restrictive as this Agreement.
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3. License Restrictions
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3.1. Binary Code. The Licenses granted in Section 2.1 for Binary Code and
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related Documentation are subject to the following restrictions:
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(a) Licensee shall not use the Binary Code and related Documentation for
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any purpose other than as expressly provided in Article 2;
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(b) Licensee shall reproduce all copyright notices and other proprietary
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markings or legends contained within or on the Binary Code and related
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Documentation on any copies it makes; and
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(c) Licensee shall not distribute or disclose the Binary Code and related
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Documentation except pursuant to an agreement with terms at least as
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protective of the Binary Code as the terms of this Agreement. Licensee
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shall not, and shall not allow its Subsequent Users to, disassemble,
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de-compile, or reverse engineer the Binary Code.
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(d) Licensee may grant the sublicense set forth in Section 2.1(e) to its
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CMs and ODMs, provided that each such CM and ODM agrees to abide by the
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terms and conditions of this Agreement and Licensee shall remain
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responsible for any failure by its CMs and ODM to comply with the terms
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and conditions of this Agreement.
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3.2. Source Code. The Licenses granted in Section 2.2 for Source Code and
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related Documentation are subject to the following restrictions:
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(a) Licensee shall not use the Source Code and related Documentation for
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any purpose other than as expressly provided in Article 2;
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(b) Licensee shall reproduce all copyright notices and other proprietary
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markings or legends contained within or on the Source Code and related
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Documentation on any copies it makes;
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(c) Licensee shall not distribute or disclose any Source Code and related
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Documentation to any Subsequent Users or third parties, without the
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express written consent of Broadcom;
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(d) Licensee shall not knowingly infringe upon the intellectual property
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rights of any third party when making Derivative Works to the Source
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Code;
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(e) Licensee shall not disassemble, reverse-engineer, or decompile the
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Source Code, except for making authorized Derivative Works; and
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(f) Licensee shall not distribute or disclose the Licensee Binary
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Derivative except pursuant to an agreement with terms at least as
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protective as those in this Agreement protecting Binary Code. Licensee
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shall not, and shall not allow its Subsequent Users to, disassemble,
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de-compile, or reverse engineer the Licensee Binary Derivative.
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3.3. Internal Use Code. The Licenses granted in Section 2.3 for Internal
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Use Code and related Documentation are subject to the following
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restrictions:
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(a) Licensee shall not use the Internal Use Code and related Documentation
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for any purpose other than as expressly provided in Article 2;
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(b) Licensee shall reproduce all copyright notices and other proprietary
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markings or legends contained within or on the Internal Use Code and
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related Documentation on any copies it makes;
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(c) Licensee shall not distribute or disclose any Internal Use Code and
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related Documentation to any Subsequent Users or third parties, without
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the express written consent of Broadcom; and
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(d) Licensee shall not disassemble, reverse-engineer, or decompile the
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Internal Use Code.
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3.4. Derivative Works of Source Code Made by Licensee. Subject to
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Broadcom's rights in the underlying Source Code, Licensee shall own
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all right, title and interest in and to the Derivative Works (both
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binary and source format) it makes from Source Code, provided that
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such Derivative Works are not made in breach of this Agreement.
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Licensee shall not be required to disclose its Derivative Works of the
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Source Code to Broadcom. Broadcom shall have no obligations whatsoever
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to support, maintain, contribute to, or provide Updates, New Versions
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or any modifications to Licensee Derivative Works of the Source Code
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and shall have no liability whatsoever for such Derivative Works. In
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the event Licensee requests Broadcom's input regarding Licensee
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Derivative Works of Source Code and plans to disclose such Derivative
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Works to Broadcom, a separate written agreement shall first be
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executed by the parties.
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3.5. Broadcom Derivative Works. Nothing contained herein shall prevent
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Broadcom from creating any Derivative Works of its Source Code at any
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time. Licensee further agrees that Broadcom may independently create a
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Derivative Work similar to or in competition with the Licensee
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Derivative Work of the Source Code and may use that Derivative Work
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for any purpose. Licensee grants Broadcom a Covenant Not to Sue for
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any independently developed Derivative Works created by Broadcom for
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its own Source Code that Licensee may believe or claim infringes on
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any of Licensee's Intellectual Property Rights relating to the
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Licensee Derivative Works of the Source Code.
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3.6. U.S. Government Subsequent Users. All Licensed Code and Documentation
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qualify as "commercial items," as that term is defined at
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48 C.F.R. 2.101, consisting of "commercial computer software" and
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"commercial computer software documentation" as such terms are used in
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48 C.F.R. 12.212. Consistent with 48 CFR 52.227-19, 48 C.F.R.12.212
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and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to
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U.S. Government end users such Binary Code with only those rights set
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forth herein that apply to non-governmental end users. Use of such
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Binary Code constitutes agreement by the government entity that the
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computer software and computer software documentation is commercial
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and constitutes acceptance of the rights and restrictions herein.
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3.7. No Implied Licenses. Except for the express and limited licenses
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granted herein for specific purposes, no rights or licenses are
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granted by Broadcom under this Agreement, by implication, inducement,
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estoppel or otherwise with respect to any proprietary information or
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to any patents, copyrights, trade secrets, trademarks, maskworks or
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other Intellectual Property Rights owned or controlled by Broadcom.
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Any further licenses must be express, in writing and signed by an
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authorized representative of Broadcom.
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3.8. Injunctive Relief. In the event of a breach by Licensee of Section 2
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or 3, Broadcom shall be entitled to applicable injunctive relief and
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to all remedies available in equity and law to prevent Licensee from
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disassembling, de-compiling, reverse engineering, disclosing or using
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the Licensed Code in whole or in part.
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3.9. Licensed Code Containing JRE. Certain Licensed Code may contain JRE.
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Use of the JRE is restricted by JRE licensing terms to General Purpose
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Desktop Computers and Servers, as defined below. Licensee may seek its
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own license for the JRE directly with the owner, if it deems
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necessary. "General Purposes Desktop Computers and Servers" under JRE
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licensing terms is defined as "computers, including desktop, laptop
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and tablet computers, or servers, used for general computing functions
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under end user control (such as but not specifically limited to email,
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general purpose Internet browsing and office suite productivity
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tools)". The full terms and conditions for use of the JRE are
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available at: http://www.oracle.com/technetwork/java/javase/terms/license/index.html.
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3.10. Notwithstanding anything to the contrary in this Agreement, to the
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extent there is a conflict between this Agreement provisions and any
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applicable license to open source technology, the provisions of the
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open source license shall take precedence and be followed, but only
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to the minimum extent reasonably necessary to comply with the
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applicable open source license.
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4. Confidentiality
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4.1 Licensee agrees to limit access to the Licensed Code and Documentation
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to employees and contractors of Licensee (which may include, without
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limitation, contractors retained by Licensee to maintain or modify the
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Licensed Code and Documentation on behalf of Licensee) having a need to
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access or know the Licensed Code and Documentation and who have
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executed nondisclosure agreements with Licensee obligating them to
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maintain the confidentiality of the Licensed Code and Documentation.
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4.2 Licensee shall hold in confidence the Licensed Code and Documentation
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as Broadcom's confidential information ("Confidential Information") and
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shall use the Broadcom Code and Documentation only as expressly
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provided in Section 2, and protect the confidentiality of such
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Confidential Information with the same degree of care as Licensee uses
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to protect its own confidential or proprietary information of great
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commercial value, but in no event less than reasonable care and for no
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less than three (3) years from the date of disclosure.
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4.3 Licensee agrees to notify Broadcom immediately after Licensee becomes
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aware of any suspected misuse or unauthorized disclosure of any
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Confidential Information. The obligations of confidentiality imposed on
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Licensee under this Section 4 shall not apply or shall cease to apply
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to any of such Confidential Information that Licensee clearly
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establishes: (i) was already rightfully in the possession of Licensee
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at the time of disclosure as evidenced by records of Licensee; (ii) is
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or becomes publicly available through no act or omission of Licensee;
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(iii) is rightfully received by Licensee from a third party without an
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obligation of confidentiality; (iv) is independently developed by
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Licensee's employees or contractors without use of or access to the
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information; or (v) is approved for unrestricted disclosure in writing
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by an authorized representative of Broadcom. Broadcom makes no warranty
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as to the accuracy of any Confidential Information, which is furnished
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"AS IS" with all faults.
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5. Ownership of Code by Broadcom, Fees, and Taxes
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5.1 Broadcom (or its licensors) reserve all right, title, ownership and
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interest in and to the Licensed Code and Documentation existing prior
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to and after the Effective Date of this Agreement, or created or
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generated by Broadcom (or its licensors) at any time, subject to any
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licenses granted. Broadcom (or its licensors) reserves all right,
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title, ownership and interest in and to any Derivative Works it creates
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at any time to the Licensed Code and Documentation, subject to any
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licenses granted.
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5.2 Fees and Taxes. No fees are due in connection with this Agreement
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unless separately specified by Broadcom. If any such fees are
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separately specified in writing, the following applies:
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5.2.1 Payment is due by Licensee upon download, at time of purchase, or no
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later than within thirty (30) days of date of Broadcom invoice
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therefore, as designated by Broadcom All payments shall be made in
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U.S. currency unless otherwise agreed. If at any time, Licensee is
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delinquent in the payment of any invoice, or is otherwise in breach
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of this Agreement, Broadcom may, at its discretion, and without
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|
prejudice to its other rights, withhold delivery (including partial
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|
delivery) of any order or may, at its option, require Licensee to
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prepay for further deliveries. Any sum not paid by Licensee, when
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due, shall bear interest until paid at a rate of 1.5% per month
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(18% per annum) or the maximum rate permitted by law, whichever is
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less.
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5.2.2 All payments or reimbursements due under this Agreement and any
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instrument or agreement required hereunder shall be made free and
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clear and without deduction for any and all present and future Taxes.
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Payments due to Broadcom under this Agreement and any instrument or
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|
agreement required hereunder shall be increased so that amounts
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|
received by Broadcom, after provisions for Taxes and all Taxes on
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such increase, will be equal to the amounts required under this
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|
Agreement and any instrument or agreement required hereunder if no
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Taxes were due on such payments.
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5.2.3 The Licensee shall indemnify Broadcom for the full amount of Taxes
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attributable to the provision of products or services under this
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Agreement, and any liabilities (including penalties, interest and
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expenses) arising from such Taxes, within thirty (30) days from any
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written demand by Broadcom. The Licensee shall provide evidence that
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all applicable Taxes have been paid to the appropriate taxing
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authority by delivering to Broadcom receipts or notarized copies
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thereof within thirty (30) days after the due date for such tax
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payments.
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5.2.4 Without prejudice to the survival of any other Agreement of Licensee
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hereunder, the obligations of Licensee contained in this section
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shall survive the payment in full of all payments hereunder.
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6. Support
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(a) Broadcom may provide the following support services for the Licensed
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Code to the extent Broadcom deems reasonable: Updates if and when
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released and errata in Broadcom's sole discretion. Broadcom shall not
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|
be responsible for any other support or maintenance of Licensed Code to
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|
Licensee or its Subsequent Users, unless otherwise agreed to in
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|
writing. Broadcom is under no obligation to provide support services
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|
and may discontinue support services at any time. Broadcom will not
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|
provide support for modified Licensed Code or Licensee's Derivative
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|
Works of the Source Code.
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(b) Any Updates to the Licensed Code provided by Broadcom (which shall only
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|
be provided by Broadcom in its sole discretion) shall be governed by
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the terms of this Agreement.
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(c) If Licensee finds what Licensee considers an error in the Licensed
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|
Code, Licensee will notify Broadcom so that Broadcom can, in its sole
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|
discretion, make corrections to the Licensed Code or to future
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|
revisions of the Licensed Code.
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7. Term and Termination
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7.1 Term. The term of this Agreement is five (5) years from the Effective
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|
Date, subject to renewal upon mutual agreement of the parties.
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|
7.2 Termination for Breach. If Licensee breaches any material provision of
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|
this Agreement, Broadcom shall have the right to terminate this
|
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|
Agreement, including all licenses granted hereunder, in addition to any
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|
and all other remedies available at law or equity, unless Licensee
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|
cures such breach within sixty (60) days ("Cure Period") after
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|
receiving written notice of the breach by Broadcom. Licensee shall make
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|
best efforts to cure the material breach in the least amount of time
|
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|
possible within the Cure Period.
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|
7.3 Insolvency. If either party: (a) becomes substantially insolvent;
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|
(b) makes an assignment for the benefit of creditors; (c) files or has
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|
filed against it a petition in bankruptcy or seeking reorganization;
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|
(d) has a receiver appointed; or (e) institutes any proceedings for
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|
liquidation or winding up or have such proceedings instituted against
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|
it; then the other party may, in addition to other rights and remedies
|
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|
it may have, terminate this Agreement immediately by written notice.
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|
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
|
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|
otherwise expressly set forth herein as surviving termination or
|
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|
expiration.
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|
7.5 Return of Confidential Information. Upon expiration or termination of
|
|
|
this Agreement for any reason or upon written request by Broadcom,
|
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|
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
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|
Licensee, including all Licensed Code and Documentation.
|
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|
7.6 Survival of Licenses. Any Licensed Code and Documentation distributed
|
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|
by Licensee prior to the effective date of any termination, expiration,
|
|
|
breach, or cancellation of this Agreement, shall remain licensed
|
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|
(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.
|
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|
|
|
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.
|
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|
|
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|
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.
|
