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1 | SOFTWARE LICENSE AGREEMENT |
2 | ||
3 | Unless you and Broadcom Corporation (“Broadcom”) execute a separate written | |
4 | software license agreement governing use of the accompanying software, this | |
5 | software is licensed to you under the terms of this Software License Agreement | |
6 | (“Agreement”). | |
7 | ||
8 | ANY USE, REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE CONSTITUTES YOUR | |
9 | ACCEPTANCE OF THIS AGREEMENT. | |
10 | ||
11 | 1. DEFINITIONS. | |
12 | ||
13 | 1.1. “Broadcom Product” means any of the proprietary integrated circuit | |
14 | product(s) sold by Broadcom with which the Software was designed to be used, or | |
15 | their successors. | |
16 | ||
17 | 1.2. “Licensee” means you or if you are accepting on behalf of an entity | |
18 | then the entity and its affiliates exercising rights under, and complying with | |
19 | all of the terms of this Agreement. | |
20 | ||
21 | 1.3. “Software” shall mean that software made available by Broadcom to | |
22 | Licensee in binary code form with this Agreement. | |
23 | ||
24 | 2. LICENSE GRANT; OWNERSHIP | |
25 | ||
26 | 2.1. License Grants. Subject to the terms and conditions of this Agreement, | |
27 | Broadcom hereby grants to Licensee a non-exclusive, non-transferable, | |
28 | royalty-free license (i) to use and integrate the Software in conjunction with | |
29 | any other software; and (ii) to reproduce and distribute the Software complete, | |
30 | unmodified and as provided by Broadcom, and only for use with a Broadcom | |
31 | Product. | |
32 | ||
33 | 2.2. Restriction on Modification. Licensee may not make any modifications | |
34 | to the Software. | |
35 | ||
36 | 2.3. Restriction on Distribution. Licensee shall only distribute the | |
37 | Software under the terms of this Agreement and a copy of this Agreement | |
38 | accompanies such distribution. | |
39 | ||
40 | 2.4. Proprietary Notices. Licensee shall not remove, efface or obscure any | |
41 | copyright or trademark notices from the Software. Licensee shall include | |
42 | reproductions of the Broadcom copyright notice with each copy of the Software, | |
43 | except where such Software is embedded in a manner not readily accessible to | |
44 | the end user. Licensee acknowledges that any symbols, trademarks, tradenames, | |
45 | and service marks adopted by Broadcom to identify the Software belong to | |
46 | Broadcom and that Licensee shall have no rights therein. | |
47 | ||
48 | 2.5. Ownership. Broadcom shall retain all right, title and interest, | |
49 | including all intellectual property rights, in and to the Software. Licensee | |
50 | hereby covenants that it will not assert any claim that the Software created by | |
51 | or for Broadcom infringe any intellectual property right owned or controlled by | |
52 | Licensee; provided however, the foregoing shall not apply in case the Agreement | |
53 | is terminated. | |
54 | ||
55 | 2.6. No Other Rights Granted; Restrictions. Apart from the license rights | |
56 | expressly set forth in this Agreement, Broadcom does not grant and Licensee | |
57 | does not receive any ownership right, title or interest nor any security | |
58 | interest or other interest in any intellectual property rights relating to the | |
59 | Software, nor in any copy of any part of the foregoing. No license is granted | |
60 | to Licensee in any human readable code of the Software (source code). Licensee | |
61 | shall not (i) use, license, sell or otherwise distribute the Software except as | |
62 | provided in this Agreement, (ii) attempt to modify in any way, reverse | |
63 | engineer, decompile or disassemble any portion of the Software; or (iii) use | |
64 | the Software or other material in violation of any applicable law or | |
65 | regulation, including but not limited to any regulatory agency, such as FCC, | |
66 | rules. | |
67 | ||
68 | 3. NO WARRANTY OR SUPPORT | |
69 | ||
70 | 3.1. No Warranty. THE SOFTWARE IS OFFERED “AS IS,” AND BROADCOM GRANTS AND | |
71 | LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, | |
72 | COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. BROADCOM SPECIFICALLY | |
73 | DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC | |
74 | PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY UPGRADES TO OR | |
75 | DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, BROADCOM | |
76 | GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT | |
77 | INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM | |
78 | INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY. | |
79 | ||
80 | 3.2. No Support. Nothing in this agreement shall obligate Broadcom to | |
81 | provide any support for the Software. Broadcom may, but shall be under no | |
82 | obligation to, correct any defects in the Software and/or provide updates to | |
83 | licensees of the Software. Licensee shall make reasonable efforts to promptly | |
84 | report to Broadcom any defects it finds in the Software, as an aid to creating | |
85 | improved revisions of the Software. | |
86 | ||
87 | 3.3. Dangerous Applications. The Software is not designed, intended, or | |
88 | certified for use in components of systems intended for the operation of | |
89 | weapons, weapons systems, nuclear installations, means of mass transportation, | |
90 | aviation, life-support computers or equipment (including resuscitation | |
91 | equipment and surgical implants), pollution control, hazardous substances | |
92 | management, or for any other dangerous application in which the failure of the | |
93 | Software could create a situation where personal injury or death may occur. | |
94 | Licensee understands that use of the Software in such applications is fully at | |
95 | the risk of Licensee. | |
96 | ||
97 | 4. TERM AND TERMINATION | |
98 | ||
99 | 4.1. Termination. This Agreement will automatically terminate if Licensee | |
100 | fails to comply with any of the terms and conditions hereof. In such event, | |
101 | Licensee must destroy all copies of the Software and all of its component | |
102 | parts. | |
103 | ||
104 | 4.2. Effect Of Termination. Upon any termination of this Agreement, the | |
105 | rights and licenses granted to Licensee under this Agreement shall immediately | |
106 | terminate. | |
107 | ||
108 | 4.3. Survival. The rights and obligations under this Agreement which by | |
109 | their nature should survive termination will remain in effect after expiration | |
110 | or termination of this Agreement. | |
111 | ||
112 | 5. CONFIDENTIALITY | |
113 | ||
114 | 5.1. Obligations. Licensee acknowledges and agrees that any documentation | |
115 | relating to the Software, and any other information (if such other information | |
116 | is identified as confidential or should be recognized as confidential under the | |
117 | circumstances) provided to Licensee by Broadcom hereunder (collectively, | |
118 | “Confidential Information”) constitute the confidential and proprietary | |
119 | information of Broadcom, and that Licensee’s protection thereof is an essential | |
120 | condition to Licensee’s use and possession of the Software. Licensee shall | |
121 | retain all Confidential Information in strict confidence and not disclose it to | |
122 | any third party or use it in any way except under a written agreement with | |
123 | terms and conditions at least as protective as the terms of this Section. | |
124 | Licensee will exercise at least the same amount of diligence in preserving the | |
125 | secrecy of the Confidential Information as it uses in preserving the secrecy of | |
126 | its own most valuable confidential information, but in no event less than | |
127 | reasonable diligence. Information shall not be considered Confidential | |
128 | Information if and to the extent that it: (i) was in the public domain at the | |
129 | time it was disclosed or has entered the public domain through no fault of | |
130 | Licensee; (ii) was known to Licensee, without restriction, at the time of | |
131 | disclosure as proven by the files of Licensee in existence at the time of | |
132 | disclosure; or (iii) becomes known to Licensee, without restriction, from a | |
133 | source other than Broadcom without breach of this Agreement by Licensee and | |
134 | otherwise not in violation of Broadcom’s rights. | |
135 | ||
136 | 5.2. Return of Confidential Information. Notwithstanding the foregoing, all | |
137 | documents and other tangible objects containing or representing Broadcom | |
138 | Confidential Information and all copies thereof which are in the possession of | |
139 | Licensee shall be and remain the property of Broadcom, and shall be promptly | |
140 | returned to Broadcom upon written request by Broadcom or upon termination of | |
141 | this Agreement. | |
142 | ||
143 | 6. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO | |
144 | EVENT SHALL BROADCOM OR ANY OF BROADCOM’S LICENSORS HAVE ANY LIABILITY FOR ANY | |
145 | INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON | |
146 | ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING | |
147 | NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT | |
148 | LIMITED TO LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE | |
149 | POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BROADCOM’S LIABILITY WHETHER IN | |
150 | CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY | |
151 | LICENSEE FOR SOFTWARE UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY | |
152 | NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. | |
153 | ||
154 | 7. MISCELLANEOUS | |
155 | ||
156 | 7.1. Export Regulations. YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS | |
157 | SUBJECT TO UNITED STATES AND OTHER APPLICABLE EXPORT-RELATED LAWS AND | |
158 | REGULATIONS AND THAT YOU MAY NOT EXPORT, RE-EXPORT OR TRANSFER THE SOFTWARE OR | |
159 | ANY DIRECT PRODUCT OF THE SOFTWARE EXCEPT AS PERMITTED UNDER THOSE LAWS. | |
160 | WITHOUT LIMITING THE FOREGOING, EXPORT, RE-EXPORT OR TRANSFER OF THE SOFTWARE | |
161 | TO CUBA, IRAN, NORTH KOREA, SUDAN AND SYRIA IS PROHIBITED. | |
162 | ||
163 | 7.2 Assignment. This Agreement shall be binding upon and inure to the | |
164 | benefit of the parties and their respective successors and assigns, provided, | |
165 | however that Licensee may not assign this Agreement or any rights or obligation | |
166 | hereunder, directly or indirectly, by operation of law or otherwise, without | |
167 | the prior written consent of Broadcom, and any such attempted assignment shall | |
168 | be void. Notwithstanding the foregoing, Licensee may assign this Agreement to | |
169 | a successor to all or substantially all of its business or assets to which this | |
170 | Agreement relates that is not a competitor of Broadcom. | |
171 | ||
172 | 7.3. Governing Law; Venue. This Agreement shall be governed by the laws of | |
173 | California without regard to any conflict-of-laws rules, and the United Nations | |
174 | Convention on Contracts for the International Sale of Goods is hereby excluded. | |
175 | The sole jurisdiction and venue for actions related to the subject matter | |
176 | hereof shall be the state and federal courts located in the County of Orange, | |
177 | California, and both parties hereby consent to such jurisdiction and venue. | |
178 | ||
179 | 7.4. Severability. All terms and provisions of this Agreement shall, if | |
180 | possible, be construed in a manner which makes them valid, but in the event any | |
181 | term or provision of this Agreement is found by a court of competent | |
182 | jurisdiction to be illegal or unenforceable, the validity or enforceability of | |
183 | the remainder of this Agreement shall not be affected if the illegal or | |
184 | unenforceable provision does not materially affect the intent of this | |
185 | Agreement. If the illegal or unenforceable provision materially affects the | |
186 | intent of the parties to this Agreement, this Agreement shall become | |
187 | terminated. | |
188 | ||
189 | 7.5. Equitable Relief. Licensee hereby acknowledges that its breach of this | |
190 | Agreement would cause irreparable harm and significant injury to Broadcom that | |
191 | may be difficult to ascertain and that a remedy at law would be inadequate. | |
192 | Accordingly, Licensee agrees that Broadcom shall have the right to seek and | |
193 | obtain immediate injunctive relief to enforce obligations under the Agreement | |
194 | in addition to any other rights and remedies it may have. | |
195 | ||
196 | 7.6. Waiver. The waiver of, or failure to enforce, any breach or default | |
197 | hereunder shall not constitute the waiver of any other or subsequent breach or | |
198 | default. | |
199 | ||
200 | 7.7. Entire Agreement. This Agreement sets forth the entire Agreement | |
201 | between the parties and supersedes any and all prior proposals, agreements and | |
202 | representations between them, whether written or oral concerning the Software. | |
203 | This Agreement may be changed only by mutual agreement of the parties in | |
204 | writing. | |
205 |