| 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. |