LA_OPT54 v2 August
2018
SOFTWARE LICENSE AGREEMENT
VIVANTE GPU CLICK THROUGH – NON COMMERICAL USE
IMPORTANT. Read the
following NXP Software License Agreement (“Agreement”) completely. By selecting
the “I Accept” button at the end of this page, or by downloading, installing, or
using the Licensed Software, you indicate that you
accept the terms of the Agreement and you acknowledge that you have the
authority, for yourself or on behalf of your company, to bind your company to
these terms. You may then download or install the file. In the event of a conflict between the terms of this Agreement and
any license terms and conditions for NXP’s
proprietary software embedded
anywhere in the Licensed Software file, the terms of this Agreement shall
control. If a separate license agreement for the Licensed Software has
been signed by you and NXP, then that agreement shall govern your use of the
Licensed Software and shall supersede this Agreement.
This is a legal
agreement between your employer, of
which you are an authorized representative, or, if you have no employer, you as
an individual (“you” or “Licensee”), and NXP B.V. (“NXP”). It concerns
your rights to use the software provided to you in binary or source code form
and any accompanying written materials (the “Licensed Software”). The Licensed
Software may include any updates or error corrections or documentation relating
to the Licensed Software provided to you by NXP under this Agreement. In
consideration for NXP allowing you to access the Licensed Software, you are
agreeing to be bound by the terms of this Agreement. If you do not agree to all
of the terms of this Agreement, do not download or install the Licensed
Software. If you change your mind later, stop using the Licensed Software and
delete all copies of the Licensed Software in your possession or control. Any
copies of the Licensed Software that you have already distributed, where
permitted, and do not destroy will continue to be governed by this Agreement.
Your prior use will also continue to be governed by this Agreement.
WHEREAS, Continental Automotive GmbH has requested access to a certain
pre-production release of the Licensed Software which is not subject to
commercial use.
Section
1.
Definitions
1.1 “Affiliate” means, with respect to a party,
any corporation or other legal entity that, at any time, directly or
indirectly, Controls, is Controlled by, or is under common Control with such
party (but only as long as such Control exists). For the purpose of this definition, the term
“Control” means (i) the beneficial ownership (whether direct or indirect) of
more than fifty percent (50%) of the voting power of an entity or (ii) in the
case of an entity that does not have outstanding voting shares or securities,
the majority (i.e., more than fifty percent (50%)) of the equity interests in
such entity is now or hereafter owned or controlled by another entity, either
directly or indirectly.
1.2 “Authorized Employees” means your employees
with a need to access the Licensed Software in the course of their employment.
1.3
"Authorized System" means the hardware system(s) or software
program(s) marketed by you which contains or supports a Licensor processor and
at least one Vivante-based Graphics Processing Unit
(GPU), and for which the Licensed Software will be adapted by Licensee pursuant
to this Agreement and with which the Licensed Software will be integrated.
1.4
“Essential Patent” means a patent to the limited extent that infringement
of such patent cannot be avoided in remaining compliant with the technology standards implicated
by the usage of any of the Licensed Software, including optional
implementation of such standards, on technical but not commercial grounds,
taking into account normal technical practice and the state of the art
generally available at the time of standardization.
1.5 “Intellectual Property Rights” means any and
all rights under statute, common law or equity in and under copyrights,
trade secrets, and patents (including utility models), and analogous rights
throughout the world, including any applications for and the right to
apply for, any of the foregoing.
1.6
"Licensed Software" means Vivante GPU
Driver software provided in source code format (human readable) or in object
code format (machine readable) and associated documentation. Licensed Software
may include Licensor enhanced or optimized Vivante
GPU driver software (“Enhanced Licensed Software”) if delivered by Licensor
Professional Services in source code format (human readable) or in object code
format (machine readable) and including any associated documentation.
1.7
"Agreement" means this document.
Section
2.
Licenses
2.1
For Licensed Software, Licensor grants you a world-wide, personal,
non-transferable, non-exclusive, license, under Licensor’s Intellectual
Property Rights:
(a)
to use, only as part of, or integrated within, Authorized Systems and not on a stand alone basis, the Licensed
Software;
(b)
to reproduce, only as part of, or integrated within, Authorized Systems and not
on a stand alone basis, the
Licensed Software;
(c)
to directly or indirectly manufacture, demonstrate, copy, and market the
Licensed Software in object code (machine readable) only as part of, or
embedded within, Authorized Systems in object code form and not on a stand alone basis.
2.2
For Licensed Software provided to you in source code form (human readable), Licensor
further grants to you a worldwide, personal, non-transferable, non-exclusive,
license, under Licensor’s Intellectual Property Rights:
(a)
to prepare derivative works, only as part of, or integrated within, Authorized
Systems and not on a stand alone
basis, of the Licensed Software;
(b)
to use, demonstrate, copy, and market derivative works of
the Licensed Software in object code (machine readable) only as part of, or
integrated within, Authorized Systems and not on a stand
alone basis.
2.3
The licenses granted above in section 2.1 only extend to Licensor intellectual
property rights that would be infringed by the Licensed Software prior to your
preparation of any derivative work.
2.4
You are solely responsible for obtaining any necessary third
party approvals and any licenses for any necessary Essential Patents for
their use in connection with technology that you incorporate into the your
Authorized System (whether as part of the Licensed Software or not).
2.5
The Licensed Software is licensed to you, not sold. Title to Licensed
Software delivered hereunder remains vested in Licensor or Licensor's licensor
and cannot be assigned or transferred. You are expressly forbidden from
selling or otherwise distributing the Licensed Software, or any portion
thereof, except as expressly permitted herein. This Agreement does not
grant to you any implied rights under any Licensor or third party intellectual
property.
2.6
You may not translate, reverse engineer, decompile, or disassemble the Licensed
Software except to the extent applicable law specifically prohibits such
restriction. You are expressly prohibited from any commercial use of this
Licensed Software.
2.7
You must reproduce any and all of Licensor's (or its third
party licensor’s) copyright notices and other proprietary legends on
copies of Licensed Software.
2.8
If you distribute the Licensed Software to the United States Government, then
the Licensed Software is “restricted computer software” and is subject to FAR
52.227-19 (c)(1) and (c)(2).
2.9
You grant to Licensor a non-exclusive, non-transferable, irrevocable,
perpetual, worldwide, royalty-free, sub-licensable license under your
Intellectual Property Rights to use without restriction and for any purpose any
suggestion, comment or other feedback related to the Licensed Software
(including, but not limited to, error corrections and bug fixes).
Section
3. Open
Source
Open source software included in the Licensed Software is not
licensed under the terms of this Agreement but is instead licensed under the
terms of the applicable open source license(s), such as the BSD License, Apache
License or the GNU Lesser General Public License. Your use of the open source
software is subject to the terms of each applicable license. You must agree to
the terms of each applicable license, or you cannot use the open source
software.
Section
4. Intellectual Property Rights
4.1
Your modifications to the Licensed Software, and all intellectual property
rights associated with, and title thereto, will be the property of Licensor.
You agree to assign all, and hereby do assign all rights, title, and interest
to any such modifications to the Licensed Software to Licensor and agree to
provide all assistance reasonably requested by Licensor to establish, preserve
or enforce such right. Further, you agree to waive all moral rights
relating to your modifications to the Licensed Software, including, without
limitation, any and all rights of identification of authorship and any and all
rights of approval, restriction, or limitation on use or subsequent
modification. Notwithstanding the foregoing, you will have the license
rights granted in Section 2 hereto to any such modifications made by you or
your licensor’s.
Section
5.
Patent Covenant not to Sue
5.1
As partial, material consideration for the rights granted to you under this
Agreement, you covenant not to sue or otherwise assert your patents
against Licensor, a Licensor Affiliate or subsidiary, or a Licensor
licensee of the Licensed Software for infringement of your Intellectual
Property Rights by the manufacture, use, sale, offer for sale, importation or
other disposition or promotion of the Licensed Software and/or any
redistributed portions thereof.
Section
6.
Term and Termination
6.1
This Agreement will remain in effect unless terminated as provided herein.
6.2
You may terminate this Agreement immediately upon written notice to Licensor at
the address provided below.
6.3
Either party may terminate this Agreement if the other party is in default of
any of the terms and conditions of this Agreement, and termination is effective
if the defaulting party fails to correct such default within 30 days after
written notice thereof by the non-defaulting party to the defaulting party at
the address below.
6.4
Notwithstanding the foregoing, Licensor may terminate this Agreement
immediately upon written notice if you:
(a)
breach any of your confidentiality obligations or the license restrictions
under this Agreement;
(b)
become bankrupt or insolvent, or file a petition therefore;
(c)
make an assignment for the benefit of its creditors;
(d)
enter proceedings for winding up or dissolution;
(e)
are dissolved; or
(f)
are nationalized or are subject to the expropriation of all or substantially all of your business or assets.
6.5
Upon termination of this Agreement, all licenses granted under Section 2 will
expire, except that any licenses extended to end-users pursuant to Sections 2.1
(c), 2.2 (b) which have been granted prior to such termination will
survive.
6.6
After termination of this Agreement by either party and upon Licensor’s written
request, you will, at your discretion, return to Licensor any confidential
information including any and all copies thereof or furnish to Licensor at the
address below, or a statement certifying, with respect to the Licensed Software
delivered hereunder that the original and all copies, except for archival
copies to be used solely for dispute resolution purposes, in whole or in part,
in any form, of the Licensed Software have been destroyed.
6.7
Notwithstanding the termination of this Agreement for any reason, the terms of
Sections 1, 2.4 – 2.10, 3-5, 6.6, 6.7, 7, 8 and 9 will survive.
Section
7.
Warranty Disclaimer
7.1
Warranty Disclaimer. THE LICENSED SOFTWARE IS PROVIDED “AS
IS.” TO FULLEST EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL
WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY
QUALITY OR FITNESS, AND THE WARRANTY AGAINST INFRINGEMENT SPECIFIED IN THE
UNIFORM COMMERCIAL CODE.
Section 8.
Indemnification
8.1
You will defend, indemnify and hold harmless Licensor from any and all damages
claims, liabilities, and costs (including reasonable attorney’s fees) related
to your (including contractor’s and licensee’s) use of the Licensed Software
and/or (2) your (including contractor’s and licensee’s) violation of the terms
and conditions of this Agreement. You are excused from this obligation to
the extent any such claim arises solely from the Licensed Software as provided
by Licensor.
Section
9.
General Provisions
9.1
Amendments and Waivers. No amendment of
any provision of this Agreement will be valid unless stated in writing and
signed by authorized representatives of each of the parties. No waiver by
any party of any default, misrepresentation or covenant herein, whether
intentional or not, will be deemed to extend any prior or subsequent default,
misrepresentation, or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent occurrence.
9.2
Choice of Law.
This Agreement will be governed by, construed, and enforced in
accordance with the laws of The Netherlands, without regard to conflicts of
laws principles, will apply to all matters relating to this Agreement or the
Licensed Software, and you agree that any litigation will be subject to the
exclusive jurisdiction of the courts of Amsterdam, The Netherlands. The United
Nations Convention on Contracts for the International Sale of Goods will not
apply to this document.
9.3
Confidential Information. You will treat the Licensed Software as
confidential information and you agree to retain the Licensed Software in
confidence perpetually with respect to Licensed Software in source code form
(human readable), or for a period of five (5) years from the date of
termination of this Agreement, with respect to all other parts of the Licensed
Software. During this period you may not
disclose any part of the Licensed Software to others than employees or
contractors who have a need to know of the Licensed Software and who have
executed written agreements obligating them to protect such Licensed
Software. You agree to use the same degree of care, but no less than a
reasonable degree of care, with the Licensed Software as you do with your own
confidential information. You may disclose Licensed Software to the extent
required by a court or under operation of law or order provided that you notify
Licensor of such requirement prior to disclosure, that you only disclose
information required, and that the you allow Licensor the opportunity to object
to such court or other legal body requiring such disclosure.
9.4
Counterparts. This Agreement may be executed in one or more
original counterparts, all of which together will constitute one agreement, and
facsimile signatures will have the same effect as original signatures.
9.5
Entire Agreement. This Agreement,
including its attachments, constitutes the entire agreement between the parties
regarding the subject matter hereof, and supersedes all prior communications,
negotiations, understandings, agreements or representations, either written or
oral, by or among the parties regarding such subject matter.
9.7
Notices. All
notices and communications under this Agreement will be made in writing,
and will be effective when received at the following addresses:
Licensor:
NXP B.V.
High
Tech Campus 60
5656
AG Eindhoven
The
Netherlands
ATTN: Legal Department
You: The address provided at registration will be used.
Either party may change its notice information upon
notice to the other party.
9.8
Relationship of the Parties. The parties are
independent contractors. Nothing in this Agreement will be construed to
create any partnership, joint venture, or similar relationship. Neither
party is authorized to bind the other to any obligations with third parties.
9.9
Severability. If any provision of this Agreement is held for any
reason to be invalid or unenforceable the remaining provisions of this
Agreement will be unimpaired and, unless a modification or replacement of the
invalid or unenforceable provision is further held to deprive a party of a
material benefit, in which case the Agreement will immediately terminate, the
invalid or unenforceable provision will be replaced with a provision that is
valid and enforceable and that comes closest to the parties’ intention
underlying the invalid or unenforceable provision.
9.10
Succession and Assignment. This Agreement will be binding
upon and inure to the benefit of the parties and their permitted successors and
assigns. No portion of this Agreement may be
assigned or otherwise transferred by you, without Licensor’s prior written
consent. Licensor may assign this Agreement, or any part of this Agreement, in
its sole discretion.
9.11 Unauthorized
Use. The Licensed Software is not intended or authorized for use in
anti-personnel landmines, and you agree that it will not be used for this
purpose. Upon request from Licensor, you will furnish a written certification
that you do not use or permit the use of the Licensed Software in
anti-personnel landmines. The Licensed Software is not intended or
authorized for use in products surgically implanted into the body, for life support
or for other products in which a product failure could cause personal injury or
death. If you permit the uses of Licensed Software for these unintended
or unauthorized uses, you will fully indemnify, defend, and hold harmless Licensor,
its Affiliates, subsidiaries, officers and directors, employees, and
distributors from all liability related to such use, including attorneys’ fees
and costs.
9.13
International Sale of Goods. The United Nations Convention on Contracts
for the International Sale of Goods will not apply to this document.
9.14 Audit. You will maintain accurate and up-to-date records pertaining to this Agreement and will grant Licensor or its authorized agent access to and copies of such records and information as requested by Licensor that pertain to your obligations under this Agreement. Such access will be granted upon reasonable advance written notice, and be conducted during normal business hours with minimal impact to your business operations, and subject to confidentiality restrictions. You will maintain such records for a period of at least three (3) years from the date of termination of this Agreement. You must make prompt adjustment to compensate for any errors and/or omissions disclosed by such examination or audit.
