CODESOURCERY, INC. (“ CODESOURCERY”) IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY DOWNLOADING THIS SOFTWARE, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO YOUR ENTITY. YOU MUST ACCEPT THESE TERMS AND HAVE THE AUTHORITY TO BIND YOUR ENTITY IN ORDER TOINSTALL OR USE SOURCERY VSIPL++.
Sourcery VSIPL++ Software License Agreement
The parties to this Agreement are you, the licensee (“Licensee” or “You“) and CodeSourcery, Inc. (“CodeSourcery”).
Definitions.
“Authorized Users.” The developers for whom license fees are fully paid by Licensee and that are authorized to use the Licensed Software. The number of Authorized Users is set forth in the Quotation.
“Effective Date.” The date on which Licensee accepts this Agreement.
“End User.” A party unaffiliated with Licensee who acquires Licensee Products incorporating the Licensed Software from Licensee for internal use and not for redistribution.
“Licensed Platforms.” The set of host and target platforms for which CodeSourcery will provide support under this Agreement as set forth in the Quotation.
“Licensed Software.” The libraries, in source code and/or binary form, and accompanying documentation, including any Updates, specified in the Quotation.
“Licensee Product.” The Licensee software and/or hardware products incorporating the Licensed Software as set forth in the Quotation.
“License Type.” The License Type specified in the Quotation: Evaluation, Internal Use, OEM (Application Development), or OEM (Device Manufacturer).
“Proprietary Rights.” All rights in and to copyrights, rights to register copyrights, trade secrets, inventions, patents, patent rights, trademarks, trademark rights, confidential and proprietary information protected under contract or otherwise under law, and other similar rights or interests in intellectual or industrial property.
License Grant.
| 2.1. | Evaluation License. If the License Type is an Evaluation License, subject to the terms and conditions hereof, and only for the term hereof, CodeSourcery hereby grants to Licensee, and Licensee hereby accepts, a limited, non-exclusive license under the Proprietary Rights of CodeSourcery to install and use the Licensed Software and to create derivative worksbased the Licensed Software for internal use and solely for the purpose of evaluating the Licensed Software. |
| 2.2. | Internal Use License. If the License Type is an Internal Use License, subject to the terms and conditions hereof, and only for the term hereof, CodeSourcery hereby grants to Licensee a limited, non-exclusive license under the Proprietary Rights of CodeSourcery for the Authorized Users to install and use the Licensed Software and to create derivative works based the Licensed Software for internal use; provided that said derivative works must not be a signal- or image-processing toolkit or library and must provide substantially different functionality than the Licensed Software. |
| 2.3. | OEM License. If the License Type is an OEM (Application Development) or OEM (Device Manufacturer) License, subject to the terms and conditions hereof, and only for the term hereof, CodeSourcery hereby grants to Licensee the right and license to install and use the Licensed Software, to create derivative works based the Licensed Software, and to reproduce and distribute Licensee Product(s), incorporating the Licensed Software to End Users in object code form only; provided that Licensee Product must not be a signal- or image-processing toolkit or library and must provide substantially different functionality than the Licensed Software. |
Updates. During the term of this Agreement, Licensee may download, free of charge, any new version(s), update(s), or upgrade(s) (“Updates”) to the Licensed Software that CodeSourcery makes available through CodeSourcery’s electronic support system.
Fees and Payment Terms. The licenses and rights granted in this Agreement are subject to Licensee’s payment of all fees owed to CodeSourcery as set forth in the Quotation.All fees are due and payable within thirty (30) days of receipt of invoice. All fees are non-refundable and are exclusive of sales or use taxes and any levy imposed on the transportation or use of the Licensed Software. Licensee shall pay all such charges either as levied by taxing authorities or as invoiced by CodeSourcery. Late payments will accrue interest at the rate of eighteen percent (18%) per annum, or at such lower rate required by applicable law.
Royalty Payments, Reports and Audit Rights. If royalties are due to CodeSourcery under this Agreement, royalty payments and reports shall be made to CodeSourcery on a quarterly basis within thirty (30) days of the end of each calendar quarter. Licensee shall keep full and accurate records in accordance with generally accepted accounting principles and in sufficient detail to permit the determination of such royalties. Licensee’s written report shall contain the following information:
the quantity sold or otherwise transferred during the accounting period, and the sum of the licensing fees for such quantity; and
the amount of royalties due and how they were calculated.
In the event no royalties are due, Licensee’s report shall so state.
Upon written notice for an audit, Licensee shall permit auditors designated by CodeSourcery, together with such legal and technical support as CodeSourcery deems necessary, to examine, during ordinary business hours, records, materials, and/or manufacturing processes of Licensee for the purpose of verifying compliance with this Agreement.
Each party shall pay the costs that it incurs in the course of the audit. However, in the event that the audit establishes underpayment greater than five percent (5%) of the royalties due, Licensee shall reimburse CodeSourcery for the cost of the audit; provided, however, such reimbursement shall not exceed the amount of the underpayment.
Purchase of Additional Licenses. If Licensee purchases license rights for additional Authorized Users, such additional licenses shall be governed by the terms and conditions hereof. Pricing for additional licenses shall be in accordance with CodeSourcery's then-current price list, which may be updated by CodeSourcery from time to time, pro-rated as appropriate for the remainder of the current subscription term. Licensee agrees that, absent CodeSourcery's express written acceptance thereof, the terms and conditions contained in any purchase order or other document issued by Licensee to CodeSourcery for the purchase of additional licenses, shall not be binding on CodeSourcery to the extent that such terms and conditions are additional to or inconsistent with those contained in this Agreement.
Term and Termination.
| 7.1. | Evaluation License.This Agreement shall have a term of thirty (30) days. The evaluation term may only be extended with CodeSourcery’s express written agreement. In addition, CodeSourcery may terminate this Agreement upon seven (7) days written notice of a material breach of this Agreement if such breach is not cured; provided that the unauthorized use, copying, or distribution of the Licensed Software will be deemed a material breach that cannot be cured. Upon the expiration or termination hereof, Licensee shall cease using the Licensed Software and any derivative works thereof. | ||||||||
| 7.2. | Internal Use and OEM Licenses.
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Technical Support.
| 8.1. | Scope of Support. CodeSourcery shall assist Licensee in installing and using the Licensed Software. CodeSourcery shall correct defects in the Licensed Software reported by Customer, subject to the limitations set forth below. CodeSourcery shall impose no limit on the number of support requests made by Licensee. |
| 8.2. | Electronic Support System. Licensee shall make all support requests via CodeSourcery’s electronic support system. Licensee shall appoint up to two Technical Contacts, who will be provided access to CodeSourcery’s electronic support system. Licensee may replace either or both of the Technical Contacts from time to time by written notification to CodeSourcery. CodeSourcery will not accept support requests by telephone or other means. |
| 8.3. | Response Time. CodeSourcery’s electronic support system will provide Licensee with an immediate acknowledgement of the support request (including a unique tracking number) by electronic mail. If the License Type is an Internal Use or OEM License, CodeSourcery shall respond to all support requests within one business day, except in extraordinary circumstances, and CodeSourcery shall attempt to resolve all support requests within three business days. |
| 8.4. | No Guarantee of Resolution. CodeSourcery does not guarantee that it will be able to resolve all support requests. Without limitation, CodeSourcery may, in its sole discretion, determine that a defect in the Licensed Software is too difficult to correct, or than any correction would likely risk the introduction of additional defects, or that the defect is not likely to be encountered often enough to be worthy of correction, or that the defect is insufficiently severe to be worthy of correction. |
Confidentiality of Licensed Software. Licensee acknowledges CodeSourcery's claim that the Licensed Software embodies valuable trade secrets consisting of algorithms, logic, design, and coding methodology proprietary to CodeSourcery. Licensee shall safeguard the confidentiality of the Licensed Software, using the same standard of care which Licensee uses for its similar confidential materials, but in no event less than reasonable care. Licensee shall not: (i) distribute, transfer, loan, rent, or provide access to the Licensed Software, except as provided herein; (ii) remove or add any Proprietary Rights notice associated with the Licensed Software without the express written permission of CodeSourcery; or (iii) publish any benchmark or performance data related to the Licensed Software without the prior written approval of CodeSourcery.
Assignment and Transfers. Licensee may not transfer any rights under this Agreement without the prior written consent of CodeSourcery, except in the case of the sale of all or substantially all of the assets of the business unit associated with the Licensee Product(s) incorporating the Licensed Software. A condition to any transfer or assignment shall be that the recipient agrees to the terms of this Agreement. Any attempted transfer or assignment in violation of this provision shall be null and void.
Ownership. CodeSourcery owns and/or has licensed the Licensed Software and all Proprietary Rights embodied therein, including copyrights and valuable trade secrets embodied in its design and coding methodology. The Licensed Software is protected by United States copyright laws and international treaty provisions. CodeSourcery also owns all rights, title and interest in and with respect to its trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual property. This Agreement provides Licensee only a limited use license, and no ownership of any intellectual property.
Proprietary Rights Warranty and Indemnification. CodeSourcery represents and warrants that CodeSourcery has the authority to license the rights to the Licensed Software which are granted herein. If the License Type is an Internal Use or OEM License, CodeSourcery shall defend, indemnify, and hold Licensee harmless from claim or damage arising out of (i) the lack of right or authority to license the Licensed Software, or (ii) infringement of any copyright, trade secret, or patent as a result of the use of a the Licensed Software; provided, however, that CodeSourcery is promptly notified in writing of any such suit or claim, and further provided that Licensee permits CodeSourcery to defend, compromise, or settle same, and provides all available information and reasonable assistance to enable CodeSourcery to do so. The foregoing is exclusive and states the entire liability of CodeSourcery with respect to infringements or misappropriation of any Proprietary Rights by the Licensed Software. IF THE LICENSE TYPE IS AN EVALUATION LICENSE, CODESOURCERY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT.
Warranty Disclaimers. EXCEPT AS SET FORTH ABOVE, TECHNICAL SUPPORT IS PROVIDED IN LIEU OF ANY WARRANTY FOR THE LICENSED SOFTWARE. TO THE EXTENT ALLOWED BY LAW, CODESOURCERY AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. LICENSEE ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE LICENSED SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT.IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW.
Disclaimer of Incidental and Consequential Damages; Limitation of Liability. INDEPENDENT OF THE FORGOING PROVISIONS, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL CODESOURCERY'S LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE APPLICABLE SUBSCRIPTION TERM.
Restrictions on License to CML. CML includes software owned by and licensed from International Business Machines Corporation (“IBM”). If the Licensed Software includes CML, then Licensee agrees to the following additional terms and conditions:
Licensee may not copy or transfer CML except as otherwise provided in this Agreement; and
Licensee may not reverse assemble, reverse compile, or otherwise translate CML; and
CML is copyrighted and licensed (not sold) and title to CML is not transferred; and
IBM DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE USE OF CML INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF NON-INFRINGEMENT AND THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; and
IBM’s liability for damages of all types is limited to the amount paid by the Licensee for CML; and
Licensee may only use CML in conjunction with Cell Broadband Engine Processor-based hardware.
If the License Type is an OEM License, then Licensee agrees to include terms and condition in any sublicense to an End User of a Licensee Product incorporating CML sufficient to:
prohibit the further copying or transferring of CML; and
prohibit reverse assembly, reverse compilation, or other translation of CML; and
notify the End User that CML is copyrighted and licensed (not sold) and that title to CML is not transferred; and
notify the End User that the licensor and the owner of CML, “ DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE USE OF THE LICENSED CODE INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF NON-INFRINGEMENT AND THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;” and
notify the End User that the licensor and owner of CML’s liability for damages of all types is limited to the amount paid by the End User for CML; and
prohibit the use of CML, except when used in conjunction with Cell Broadband Engine Processor-based hardware.
Reservation of Rights. All rights not expressly granted to Licensee herein are expressly reserved by CodeSourcery.
Export Controls. Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Licensed Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Licensed Software from the U.S. Neither the Licensed Software nor the underlying information or technology may be electronically transmitted or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Licensed Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. Licensee is responsible for complying with any local laws in Licensee’s jurisdiction which might impact Licensee’s right to import, export or use the Licensed Software, and Licensee represents that Licensee has complied with any regulations or registration procedures required by applicable law to make this license enforceable.
Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Granite Bay, California, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of California, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.
U.S. Government End-Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Licensed Software with only those rights set forth herein.
Jurisdiction And Venue. The courts of Placer County in the State of California, USA and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings relating to this Agreement.
Independent Contractors. The relationship of the parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Licensee shall have no authority to enter into agreements of any kind on behalf of CodeSourcery and shall not have the power or authority to bind or obligate CodeSourcery in any manner to any third party.
Force Majeure. Neither CodeSourcery nor Licensee shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, or communications failures.
Publicity. CodeSourcery may disclose the fact that Licensee is a CodeSourcery customer and to display Client’s logo on its web site, together with the logos of other partners and customers.
Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be construed under the laws of the State of California, USA, excluding rules regarding conflicts of law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This license is written in English, and English is its controlling language.