MARVELL / SysKonnect SOFTWARE LICENSE AGREEMENT
IMPORTANT - READ BEFORE DOWNLOADING, INSTALLING OR USING THE DELIVERABLES.
The use of the Deliverables is governed by the terms of this Software License Agreement (the "Agreement") between MARVELL INTERNATIONAL LTD. ("Marvell") and you ("Licensee"). By downloading, installing or using the Deliverables or clicking on the "I accept" button, Licensee acknowledges that (1) it has read this Agreement and agrees to all of its terms and conditions and (2) the individual accepting this Agreement is authorized to do so and to obligate Licensee to these terms. If Licensee does not agree to all of the terms of this Agreement, then Licensee must not download, install or use the Deliverables.
1. DEFINITIONS.
1.1 "Deliverables" means the software accompanying this Agreement in executable or binary form and any associated documentation, materials or web based services.
1.2 "Licensee's Product" means a product developed by or for Licensee that incorporates Marvell Products.
1.3 "Licensee's Software" means Licensee's software product which integrates the Deliverables, is incorporated into Licensee's Product or is distributed for use with Licensee's Product, and is operable exclusively with Marvell Products.
1.4 "Marvell Products" means proprietary semiconductor products of Marvell's affiliated or subsidiary companies.
2. LIMITED LICENSE.
2.1 Marvell hereby grants to Licensee a non-transferable, non-exclusive, revocable, royalty-free limited license to (i) use and reproduce the Deliverables for Licensee's internal development of Licensee's Product and/or Licensee's Software and/or determination of whether or not to place volume purchase orders for Marvell Products and (ii) reproduce, have reproduced, display, perform, transmit, license, import, export, rent, lease, distribute and sublicense the Deliverables, solely as incorporated into Licensee's Product and/or Licensee's Software. Use of the Deliverables in conjunction with products other than Marvell Products is not licensed. No license is granted in any human readable (source) code of the Deliverables.
2.2 The Deliverables are licensed, not sold, and are protected by the copyright laws of the U.S. and other countries, and by international treaty provisions. All right, title and interest in and to the Deliverables and any copies, regardless of form or media, shall remain solely with Marvell and its suppliers. Marvell retains all rights not explicitly granted herein. Licensee may not decrypt, disassemble, reverse assemble or reverse compile the Deliverables except to the extent that such restrictions are prohibited by applicable law. If Licensee is a European Union ("EU") resident, information necessary to achieve interoperability of the software with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available from Marvell upon written request. Licensee will not remove, obscure or destroy, and will reproduce on all copies of the Deliverables, all Marvell names, logos, copyright notices, trademarks and other proprietary markings that appear on the Deliverables.
2.3 Licensee agrees that each copy of Licensee's Software distributed by Licensee shall be subject to a Licensee end user software license, the terms and which shall be at least as protective of Deliverables as (i) the terms and conditions Licensee uses for its own software products and (ii) the terms and conditions governing this Agreement.
3. TRADE SECRETS. Licensee acknowledges and agrees that the structure, sequence and organization of the software and non-public information contained in the Deliverables are the valuable trade secrets of Marvell and its suppliers. Licensee agrees to hold such trade secrets in confidence.
4. NO SUPPORT. Marvell may make changes to the Deliverables at any time without notice. Nothing in this Agreement obligates Marvell to support or provide updates or error corrections to the Deliverables.
5. DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MARVELL DOES NOT MAKE ANY WARRANTY AS TO THE ACCURACY, SUFFICIENCY OR SUITABILITY FOR ANY PURPOSES WHATSOEVER OF THE DELIVERABLES. MARVELL DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY MARVELL SOFTWARE LICENSE AGREEMENT
The use of the "Deliverables," as defined herein, is exclusively governed by the terms of this limited use license agreement (the "Agreement") by and between MARVELL INTERNATIONAL LTD. ("Marvell") and Licensee. By downloading, installing or using the Deliverables, Licensee accepts the terms of this Agreement and agrees that such action shall be deemed to constitute the execution of this Agreement by Licensee's duly authorized agent. If Licensee does not agree to all the terms of this Agreement, then Licensee must not download, install or use the Deliverables.
1. DEFINITIONS.
1.1 "Confidential Information" means:
(i) the Deliverables and any portions, components or sub-files thereof;
(ii) any trade secrets relating to the Deliverables and/or Marvell's Product;
(iii) any now or hereafter existing Marvell IP;
(iv) any information designated in writing by Marvell as confidential, and any information disclosed verbally
or visually and later designated in writing by Marvell as confidential; and
(vi) the terms and conditions of this Agreement.
1.2 "Deliverables" means the Marvell proprietary information downloaded by Licensee. The Deliverables shall be provided to Licensee, in Marvell's sole discretion, in source code and/or object code.
1.3 "Intellectual Property" or "IP" means any patents, patent rights, trademarks, service marks, registered designs, topography or semiconductor mask work rights, applications for any of the foregoing, copyrights, know-how, unregistered design rights, trade secrets and any other similar protected rights in any country.
1.4 "Licensee" means the entity downloading the Deliverables or for whom the Deliverables are downloaded.
1.5 "Licensee's Product" means a product developed by or for Licensee that incorporates Marvell's Product.
1.6 "Licensee's Software" means a software product developed by or for Licensee that is operable exclusively with Marvell's Product, is incorporated into Licensee's Product or is distributed for use with Licensee's Product, and integrates the Deliverables.
1.7 "Marvell's Product" means one or more integrated circuit products of Marvell or a Marvell affiliate.
2. LIMITED LICENSE.
2.1 Subject to Licensee's performance of its obligations in Section 2.2, and the remaining terms and conditions of this Agreement, Marvell hereby grants to Licensee a limited, terminable, non-transferable, royalty-free license to evaluate and use the Deliverables, only at the Licensee site into which the Deliverables have been downloaded (the "Authorized Site"), and solely in connection with Licensee's development of Licensee's Product and Licensee's Software and/or Licensee's determination of whether to place volume purchase orders from Marvell for Marvell's Product.
2.2 Licensee hereby covenants and agrees to provide Marvell with reasonable feedback and data regarding the results of Licensee's use of the Deliverables ("Feedback"), including but not limited to the technical performance of the Deliverables in Licensee's tested system and any suggested performance improvements to the Deliverables to meet or exceed any required or desired performance requirements Licensee has established for Licensee's Product and/or Licensee's Software.
2.3 Marvell grants no right to Licensee to modify, license, distribute or sell the Deliverables. Licensee may not decrypt, disassemble, reverse assemble or reverse compile the Deliverables except to the extent such restrictions are prohibited by applicable law. Decryption, disassembly, reverse assembly and reverse compilation for the purpose of error correction are specifically prohibited. The license granted herein is not a sale of any interest in the Deliverables or any IP rights therein. Title to the Deliverables and to Feedback shall remain solely with Marvell. No other rights are granted under this Agreement by implication, estoppel or otherwise. Marvell retains all rights not explicitly granted herein.
2.4 Licensee may make only such backup copies of the Deliverables as are necessary for Licensee's use of the Deliverables for the purposes set forth in Section 2.1 hereof. Licensee agrees to maintain, and shall not remove or destroy, and shall affix to any such copies, all Marvell names, logos, copyright notices, trademarks, other proprietary markings and confidential legends that appear on the Deliverables (the "Marvell Markings"). Licensee shall use the Marvell Markings solely in connection with its exercise of the license rights granted hereunder.
2.5 Only those employee(s) of Licensee who have a need to know for the purpose of exercising the license granted herein, and who have executed a written confidentiality agreement with Licensee containing terms no less protective of Confidential Information than the terms of Section 3 hereof (the "Authorized Employees"), shall be permitted access to the Deliverables. Licensee agrees to provide Marvell with a list of such Authorized Employees upon receipt of written request therefor by Marvell.
3. CONFIDENTIALITY.
Licensee will secure and protect the Deliverables as is necessary to protect Marvell's proprietary rights, and as required by Sections 2, 3 and 4 hereof. Licensee shall not disclose to any third party, or use for any purpose not expressly authorized herein, Confidential Information. Licensee agrees to take all reasonable measures to protect Confidential Information and to prevent unauthorized disclosure thereof, which measures shall be at least as stringent as those measures Licensee takes to protect its own most highly confidential information. The obligations of this Section 3 shall survive termination of this Agreement.
4. DISCLAIMER OF WARRANTIES.
THE DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MARVELL DOES NOT MAKE ANY WARRANTY AS TO THE ACCURACY, SUFFICIENCY, OR SUITABILITY FOR ANY PURPOSES WHATSOEVER OF THE DELIVERABLES. MARVELL DISCLAIMS ANY WARRANTY OF OR OBLIGATION TO PROVIDE SUPPORT TO OR UPDATES OR BUG FIXES FOR THE DELIVERABLES. MARVELL DOES NOT MAKE ANY WARRANTIES HEREUNDER, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND FURTHER DISCLAIMS ANY WARRANTY RELATED TO FREEDOM FROM INTERFERENCE WITH ENJOYMENT OR FROM NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. MARVELL DOES NOT WARRANT THAT DESIGNS OF LICENSEE'S PRODUCTS THAT ARE BASED ON THE DELIVERABLES SHALL BE FREE FROM DEFECTS.
5. LIMITATION OF LIABILITY.
IN NO EVENT SHALL MARVELL OR ANY OF ITS AFFILIATES OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF MARVELL HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. GENERAL TERMS.
6.1 Without prejudice to any other right or remedy which may be available to it, Marvell shall be entitled summarily to terminate this Agreement if Licensee:
(i) decides not to purchase Marvell's Product;
(ii) decides not to complete the development of Licensee's Product;
(iii) has committed a material breach of any of its obligations herein;
(iv) makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes
subject to the supervision of a bankruptcy tribunal;
(v) has an order made against it, or passes a resolution, for its winding-up or has a lien holder take
possession or a receiver or similar officer appointed over all or substantially all of its property or assets; or
(vi) assigns or attempts to assign this Agreement without Marvell's prior written consent.
6.2 Upon termination of this Agreement, Licensee will immediately discontinue using the Deliverables for any purpose, return to Marvell all documents and tangible objects containing or representing the Deliverables and all copies thereof, delete the Deliverables and all copies thereof from Licensee's computers, and certify to Marvell, in writing signed by an officer of Licensee, the destruction and/or return of the Deliverables to Marvell.
6.3 Notwithstanding the foregoing, all documents and other tangible objects containing or representing Marvell's Confidential Information and all copies thereof which are in the possession of Licensee shall be and remain the property of Marvell, and shall be promptly returned to Marvell upon the earlier of written request by Marvell or termination of this Agreement.
6.4 Licensee shall not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder, whether in whole or in part, including by operation of law, without the prior written consent of an authorized signatory of Marvell.
6.5 Confidential Information hereunder, including the Deliverables, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and to export or import regulations in other countries. Licensee agrees strictly to comply with all such regulations and acknowledges that Licensee has the obligation to obtain any licenses or post any notices required to export, re-export or import any Confidential Information or exercise its rights granted hereunder by Marvell. With respect to Marvell's Confidential Information, Licensee, in the absence of appropriate U.S. government authorization, agrees:
(i) not to reexport or release any of Marvell's Confidential Information consisting of technology, software or source code controlled for national security reasons by the U.S. Export Control Regulations ("EAR") to a national of EAR Country Groups D:1 or E:2;
(ii) not to export the direct product of such technology or such software to EAR Country Groups D:1 or E:2, if such technology or software and direct products thereof are controlled for national security reasons by the EAR; and
(iii) in the case of Confidential Information controlled for national security reasons under the EAR where the direct product of such information is a complete plant or component of a plant, not to export to EAR Country Groups D:1 or E:2 the direct product of the plant or major component thereof, if such direct product is controlled for national security reasons by the EAR, or is subject to controls under the U.S. Munitions List. At all times hereunder, Licensee agrees to comply with all applicable U.S export control laws with respect to any of Marvell's Confidential Information. Nothing in this Section 6.5 grants, or shall be construed to grant, any greater rights than are granted to Licensee pursuant to Section 2.1 herein. This Section 6.5 shall survive termination of this Agreement.
6.6 Licensee hereby acknowledges that breach of this Agreement may cause irreparable harm to Marvell which may be difficult to ascertain and for which a remedy at law may be inadequate. Accordingly, Licensee agrees that Marvell shall have the right to seek injunctive relief in any court of appropriate jurisdiction to enforce the terms of this Agreement in addition to any other rights and remedies Marvell may have.
6.7 This Agreement shall be construed and governed by the laws of California, excluding its conflict of laws rules. The parties hereto consent to the jurisdiction of all the courts in California, and agree that venue shall lie exclusively in California. THE PARTIES EXCLUDE IN ITS ENTIRETY THE APPLICATION TO THIS AGREEMENT OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. The original of this Agreement has been written in English and the governing language hereof shall be English. Licensee agrees not to assert any right it may have to have this Agreement written in the language of its place of residence.
6.8 This Agreement constitutes the entire agreement between the parties with respect to the license of the Deliverables, and supersedes and terminates all other prior and contemporaneous verbal and written agreements and understandings with respect to the license of the Deliverables. No modifications to this Agreement shall be enforceable except when in writing and signed by an authorized signatory of Marvell.