1 IMPORTANT - READ CAREFULLY: This Software License Agreement ("Agreement")
2 is a legal agreement between Licensee (either an individual or a single
3 entity), (“Licensee”) and Avago Technologies General IP (Singapore) Pte.
4 Ltd., ("Broadcom") for the Licensed Code, (hereinafter defined).
6 By installing, copying, or otherwise using the Licensed Code (hereinafter
7 defined), Licensee agrees to be bound by the terms of this Agreement. If
8 Licensee does not agree to the terms of this Agreement, Licensee may not
9 install, copy or use the Licensed Code. The Licensed Code is licensed, not
12 NOW THEREFORE, in consideration of the foregoing and the mutual promises
13 and covenants contained in this Agreement the parties hereby agree as
18 1.1. "Authorized Use for Source Code" means use of the Source Code solely
19 for the purpose of internally developing, modifying, integrating and
20 testing Licensee's Products to interface with Broadcom Devices
21 authorized for such integration, and for no other use or purpose.
23 1.2. "Authorized Use for Binary Code" means use of the Binary Code solely
24 for the purpose of internal evaluation or developing, integrating,
25 testing and use of Licensee's Products to interface with Broadcom
26 Devices and for no other application, use or purpose.
28 1.3. "Authorized Use for Internal Code" means use of the Internal Use Code
29 solely for the purpose of internally developing, modifying,
30 integrating and testing Licensee's Products to interface with Broadcom
31 Devices authorized for such integration, and for no other use or
34 1.4. "Documentation" means explanatory and informational materials or
35 documentation concerning the Licensed Code, in printed or electronic
36 format, including without limitation, manuals, descriptions, user and/
37 or installation instructions, diagrams, printouts, listings,
38 flowcharts, and training materials, contained on visual media such as
39 paper or photographic film, or on other physical storage media in
40 machine-readable form. Documentation does not include any code.
42 1.5. "Licensed Code" means collectively all the software programs which are
43 owned or distributed by Broadcom and obtained by Licensee via download
44 from the Broadcom support web-pages through acceptance of this
45 Agreement. The Licensed Code is specifically referenced individually
46 in this Agreement as Source Code, Binary Code, or Internal Use Code.
48 1.6. "Licensee Products" means the hardware and software (and related
49 Licensee documentation) that will be developed or modified by or for
50 Licensee utilizing the Licensed Code for the purpose of interfacing or
51 being used with Broadcom Devices.
53 1.7. "Updates" means maintenance releases, bug fixes, errata or other
54 corrections, and minor improvements or modifications to the Licensed
55 Code which may be provided by Broadcom to Licensee from time to time
56 at Broadcom's sole discretion. Broadcom is under no obligation to
57 provide Updates or provide support and maintenance services to
58 Licensee or Licensee Subsequent Users.
60 1.8. "New Version" means significant changes, modifications, enhancements,
61 and/or functional improvements to the Licensed Code. New Versions are
62 made and generally distributed solely at the discretion of Broadcom.
63 Licensee must use the latest New Version of Licensed Code that is
64 available. Broadcom is under no obligation to port any development
65 work from one version to the latest New Version of Licensed Code.
67 1.9. "Broadcom Devices" means those Broadcom products intended for use with
68 the Licensed Code and purchased from Broadcom or its agents.
70 1.10. "Derivative Works" means: (a) for copyrightable or copyrighted
71 material, any translation (including translation into other computer
72 languages), port, modification, correction, addition, extension,
73 upgrade, improvement, compilation, abridgment or other form in which
74 an existing work may be recast, transformed or adapted; (b) for
75 patentable or patented material, any improvement thereon; and (c) for
76 material which is protected by trade secret, any new material derived
77 from such existing trade secret material, including new material
78 which may be protected by copyright, patent and/or trade secret.
80 1.11. "Intellectual Property Rights" means (by whatever name or term known
81 or designated) copyrights, trade secrets, patents, moral rights and
82 any other intellectual and industrial property and proprietary rights
83 (excluding trademarks) including registrations, applications,
84 renewals and extensions of such rights anywhere in the world.
86 1.12. "Binary Code" means the software programs provided for distribution
87 at the Broadcom support web-pages, in binary form, any other machine
88 readable materials, including, but not limited to, libraries, source
89 files, header files, and data files, any Updates and New Versions
92 1.13. "Source Code" means the software programs provided for distribution
93 at the Broadcom support web-pages, in source form including, but not
94 limited to, libraries, source files, header files, and data files,
95 and Updates and New Versions provided by Broadcom.
97 1.14. "Internal Use Code" means the software programs provided for
98 distribution at the Broadcom support web-pages, in source code or
99 object code format including, but not limited to, libraries, source
100 files, header files, and data files, and Updates and New Versions
101 provided by Broadcom that are only for Licensee's internal use.
103 1.15. "JRE Code" mean Oracle Corporation's JAVA SE Runtime Environment
106 1.16. "Subsequent User" means any user subsequent to Licensee, including
107 but not limited to, all Licensee customers, resellers, end users, and
110 1.17 "Taxes" shall mean all taxes, levies, imposts, duties, fines or other
111 charges of whatsoever nature however imposed by any country or any
112 subdivision or authority thereof in any way connected with this
113 Agreement or any instrument or agreement required hereunder, and all
114 interest, penalties or similar liabilities with respect thereto,
115 except such taxes as are imposed on or measured by a party's net
121 2.1 Binary Code. Subject to the terms of this Agreement, Broadcom grants to
122 Licensee a non-exclusive, world-wide, revocable (for breach in
123 accordance with Section 7), non-transferable limited license, without
124 the right to sublicense except as expressly provided herein, solely to:
126 (a) Use the Binary Code and related Documentation solely for the Authorized
127 Use for Binary Code and only with Broadcom Devices
129 (b) Make copies of the Binary Code and related Documentation to support the
130 Authorized Use for Binary Code and for archival and backup purposes in
131 support of the Authorized Use for Binary Code only with Broadcom
134 (c) Distribute the Binary Code as incorporated in Licensee's Products or
135 for use with Broadcom Devices to its Subsequent Users;
137 (d) Distribute the Documentation related to Binary Code only for use with
140 (e) Sublicense the rights provided in paragraphs (a) and (b) above in
141 accordance with the terms provided in this Agreement to contract
142 manufacturers ("CMs") and/or original design manufacturers ("ODMs"),
143 in each case meeting the requirements of Section 3.1(d) below for the
144 purpose of manufacturing Licensee's Products; and (f) Sublicense the
145 rights provided in paragraphs (b) and (c) in accordance with the terms
146 provided in this Agreement to Subsequent Users who are not end users
147 for the purpose of distributing and supporting Licensee's Product.
149 2.2 Source Code. Subject to the terms of this Agreement, Broadcom grants to
150 Licensee a non-exclusive, worldwide, revocable (for breach in
151 accordance with Section 7), non-transferable limited license, without
152 the right to sublicense except as expressly provided herein, solely to:
154 (a) Use the Source Code and related Documentation solely for the Authorized
155 Use for Source Code and only with Broadcom Devices;
157 (b) Make copies of the Source Code and related Explanatory Material to
158 support the Authorized Use for Source Code only and for archival and
159 backup purposes in support of the Authorized use for Source Code only
160 with Broadcom Devices;
162 (c) Modify and prepare Derivative Works of the Source Code for the
163 Authorized Use for Source Code and only for use with Broadcom Devices;
165 (d) Distribute the binary form only of any authorized Derivative Work of
166 the Source Code ("Licensee Binary Derivative") and necessary portions
167 of the related Documentation only for use with Broadcom Devices; and
169 (e) Sublicense the rights granted in paragraph (d) above in accordance with
170 the terms provided in this Agreement to Subsequent Users who are not
171 end users for the purpose of distributing and supporting Licensee's
174 2.3 Internal Use Code. Subject to the terms of this Agreement, Broadcom
175 grants to Licensee a non-exclusive, worldwide, revocable (for breach in
176 accordance with Section 7), non-transferable limited license, without
177 the right to sublicense or distribute, solely to:
179 (a) Use the Internal Use Code and related Documentation solely for the
180 Authorized Use for Internal Code and only with Broadcom Devices; and
182 (b) Make copies of the Internal Use Code and related Documentation to
183 support the Authorized Use for Internal Code only and for archival and
184 backup purposes in support of the Authorized use for Internal Code only
185 with Broadcom Devices.
187 2.4 Without limiting Section 4, Licensee may exercise the foregoing rights
188 directly and/or indirectly through its employees and contractors, who
189 are bound by terms at least as restrictive as this Agreement.
192 3. License Restrictions
194 3.1. Binary Code. The Licenses granted in Section 2.1 for Binary Code and
195 related Documentation are subject to the following restrictions:
197 (a) Licensee shall not use the Binary Code and related Documentation for
198 any purpose other than as expressly provided in Article 2;
200 (b) Licensee shall reproduce all copyright notices and other proprietary
201 markings or legends contained within or on the Binary Code and related
202 Documentation on any copies it makes; and
204 (c) Licensee shall not distribute or disclose the Binary Code and related
205 Documentation except pursuant to an agreement with terms at least as
206 protective of the Binary Code as the terms of this Agreement. Licensee
207 shall not, and shall not allow its Subsequent Users to, disassemble,
208 de-compile, or reverse engineer the Binary Code.
210 (d) Licensee may grant the sublicense set forth in Section 2.1(e) to its
211 CMs and ODMs, provided that each such CM and ODM agrees to abide by the
212 terms and conditions of this Agreement and Licensee shall remain
213 responsible for any failure by its CMs and ODM to comply with the terms
214 and conditions of this Agreement.
216 3.2. Source Code. The Licenses granted in Section 2.2 for Source Code and
217 related Documentation are subject to the following restrictions:
219 (a) Licensee shall not use the Source Code and related Documentation for
220 any purpose other than as expressly provided in Article 2;
222 (b) Licensee shall reproduce all copyright notices and other proprietary
223 markings or legends contained within or on the Source Code and related
224 Documentation on any copies it makes;
226 (c) Licensee shall not distribute or disclose any Source Code and related
227 Documentation to any Subsequent Users or third parties, without the
228 express written consent of Broadcom;
230 (d) Licensee shall not knowingly infringe upon the intellectual property
231 rights of any third party when making Derivative Works to the Source
234 (e) Licensee shall not disassemble, reverse-engineer, or decompile the
235 Source Code, except for making authorized Derivative Works; and
237 (f) Licensee shall not distribute or disclose the Licensee Binary
238 Derivative except pursuant to an agreement with terms at least as
239 protective as those in this Agreement protecting Binary Code. Licensee
240 shall not, and shall not allow its Subsequent Users to, disassemble,
241 de-compile, or reverse engineer the Licensee Binary Derivative.
243 3.3. Internal Use Code. The Licenses granted in Section 2.3 for Internal
244 Use Code and related Documentation are subject to the following
247 (a) Licensee shall not use the Internal Use Code and related Documentation
248 for any purpose other than as expressly provided in Article 2;
250 (b) Licensee shall reproduce all copyright notices and other proprietary
251 markings or legends contained within or on the Internal Use Code and
252 related Documentation on any copies it makes;
254 (c) Licensee shall not distribute or disclose any Internal Use Code and
255 related Documentation to any Subsequent Users or third parties, without
256 the express written consent of Broadcom; and
258 (d) Licensee shall not disassemble, reverse-engineer, or decompile the
261 3.4. Derivative Works of Source Code Made by Licensee. Subject to
262 Broadcom's rights in the underlying Source Code, Licensee shall own
263 all right, title and interest in and to the Derivative Works (both
264 binary and source format) it makes from Source Code, provided that
265 such Derivative Works are not made in breach of this Agreement.
266 Licensee shall not be required to disclose its Derivative Works of the
267 Source Code to Broadcom. Broadcom shall have no obligations whatsoever
268 to support, maintain, contribute to, or provide Updates, New Versions
269 or any modifications to Licensee Derivative Works of the Source Code
270 and shall have no liability whatsoever for such Derivative Works. In
271 the event Licensee requests Broadcom's input regarding Licensee
272 Derivative Works of Source Code and plans to disclose such Derivative
273 Works to Broadcom, a separate written agreement shall first be
274 executed by the parties.
276 3.5. Broadcom Derivative Works. Nothing contained herein shall prevent
277 Broadcom from creating any Derivative Works of its Source Code at any
278 time. Licensee further agrees that Broadcom may independently create a
279 Derivative Work similar to or in competition with the Licensee
280 Derivative Work of the Source Code and may use that Derivative Work
281 for any purpose. Licensee grants Broadcom a Covenant Not to Sue for
282 any independently developed Derivative Works created by Broadcom for
283 its own Source Code that Licensee may believe or claim infringes on
284 any of Licensee's Intellectual Property Rights relating to the
285 Licensee Derivative Works of the Source Code.
287 3.6. U.S. Government Subsequent Users. All Licensed Code and Documentation
288 qualify as "commercial items," as that term is defined at
289 48 C.F.R. 2.101, consisting of "commercial computer software" and
290 "commercial computer software documentation" as such terms are used in
291 48 C.F.R. 12.212. Consistent with 48 CFR 52.227-19, 48 C.F.R.12.212
292 and 48 C.F.R. 227.7202-1 through 227.7202-4, Licensee will provide to
293 U.S. Government end users such Binary Code with only those rights set
294 forth herein that apply to non-governmental end users. Use of such
295 Binary Code constitutes agreement by the government entity that the
296 computer software and computer software documentation is commercial
297 and constitutes acceptance of the rights and restrictions herein.
299 3.7. No Implied Licenses. Except for the express and limited licenses
300 granted herein for specific purposes, no rights or licenses are
301 granted by Broadcom under this Agreement, by implication, inducement,
302 estoppel or otherwise with respect to any proprietary information or
303 to any patents, copyrights, trade secrets, trademarks, maskworks or
304 other Intellectual Property Rights owned or controlled by Broadcom.
305 Any further licenses must be express, in writing and signed by an
306 authorized representative of Broadcom.
308 3.8. Injunctive Relief. In the event of a breach by Licensee of Section 2
309 or 3, Broadcom shall be entitled to applicable injunctive relief and
310 to all remedies available in equity and law to prevent Licensee from
311 disassembling, de-compiling, reverse engineering, disclosing or using
312 the Licensed Code in whole or in part.
314 3.9. Licensed Code Containing JRE. Certain Licensed Code may contain JRE.
315 Use of the JRE is restricted by JRE licensing terms to General Purpose
316 Desktop Computers and Servers, as defined below. Licensee may seek its
317 own license for the JRE directly with the owner, if it deems
318 necessary. "General Purposes Desktop Computers and Servers" under JRE
319 licensing terms is defined as "computers, including desktop, laptop
320 and tablet computers, or servers, used for general computing functions
321 under end user control (such as but not specifically limited to email,
322 general purpose Internet browsing and office suite productivity
323 tools)". The full terms and conditions for use of the JRE are
324 available at: http://www.oracle.com/technetwork/java/javase/terms/license/index.html.
326 3.10. Notwithstanding anything to the contrary in this Agreement, to the
327 extent there is a conflict between this Agreement provisions and any
328 applicable license to open source technology, the provisions of the
329 open source license shall take precedence and be followed, but only
330 to the minimum extent reasonably necessary to comply with the
331 applicable open source license.
336 4.1 Licensee agrees to limit access to the Licensed Code and Documentation
337 to employees and contractors of Licensee (which may include, without
338 limitation, contractors retained by Licensee to maintain or modify the
339 Licensed Code and Documentation on behalf of Licensee) having a need to
340 access or know the Licensed Code and Documentation and who have
341 executed nondisclosure agreements with Licensee obligating them to
342 maintain the confidentiality of the Licensed Code and Documentation.
344 4.2 Licensee shall hold in confidence the Licensed Code and Documentation
345 as Broadcom's confidential information ("Confidential Information") and
346 shall use the Broadcom Code and Documentation only as expressly
347 provided in Section 2, and protect the confidentiality of such
348 Confidential Information with the same degree of care as Licensee uses
349 to protect its own confidential or proprietary information of great
350 commercial value, but in no event less than reasonable care and for no
351 less than three (3) years from the date of disclosure.
353 4.3 Licensee agrees to notify Broadcom immediately after Licensee becomes
354 aware of any suspected misuse or unauthorized disclosure of any
355 Confidential Information. The obligations of confidentiality imposed on
356 Licensee under this Section 4 shall not apply or shall cease to apply
357 to any of such Confidential Information that Licensee clearly
358 establishes: (i) was already rightfully in the possession of Licensee
359 at the time of disclosure as evidenced by records of Licensee; (ii) is
360 or becomes publicly available through no act or omission of Licensee;
361 (iii) is rightfully received by Licensee from a third party without an
362 obligation of confidentiality; (iv) is independently developed by
363 Licensee's employees or contractors without use of or access to the
364 information; or (v) is approved for unrestricted disclosure in writing
365 by an authorized representative of Broadcom. Broadcom makes no warranty
366 as to the accuracy of any Confidential Information, which is furnished
367 "AS IS" with all faults.
370 5. Ownership of Code by Broadcom, Fees, and Taxes
372 5.1 Broadcom (or its licensors) reserve all right, title, ownership and
373 interest in and to the Licensed Code and Documentation existing prior
374 to and after the Effective Date of this Agreement, or created or
375 generated by Broadcom (or its licensors) at any time, subject to any
376 licenses granted. Broadcom (or its licensors) reserves all right,
377 title, ownership and interest in and to any Derivative Works it creates
378 at any time to the Licensed Code and Documentation, subject to any
381 5.2 Fees and Taxes. No fees are due in connection with this Agreement
382 unless separately specified by Broadcom. If any such fees are
383 separately specified in writing, the following applies:
385 5.2.1 Payment is due by Licensee upon download, at time of purchase, or no
386 later than within thirty (30) days of date of Broadcom invoice
387 therefore, as designated by Broadcom All payments shall be made in
388 U.S. currency unless otherwise agreed. If at any time, Licensee is
389 delinquent in the payment of any invoice, or is otherwise in breach
390 of this Agreement, Broadcom may, at its discretion, and without
391 prejudice to its other rights, withhold delivery (including partial
392 delivery) of any order or may, at its option, require Licensee to
393 prepay for further deliveries. Any sum not paid by Licensee, when
394 due, shall bear interest until paid at a rate of 1.5% per month
395 (18% per annum) or the maximum rate permitted by law, whichever is
398 5.2.2 All payments or reimbursements due under this Agreement and any
399 instrument or agreement required hereunder shall be made free and
400 clear and without deduction for any and all present and future Taxes.
401 Payments due to Broadcom under this Agreement and any instrument or
402 agreement required hereunder shall be increased so that amounts
403 received by Broadcom, after provisions for Taxes and all Taxes on
404 such increase, will be equal to the amounts required under this
405 Agreement and any instrument or agreement required hereunder if no
406 Taxes were due on such payments.
408 5.2.3 The Licensee shall indemnify Broadcom for the full amount of Taxes
409 attributable to the provision of products or services under this
410 Agreement, and any liabilities (including penalties, interest and
411 expenses) arising from such Taxes, within thirty (30) days from any
412 written demand by Broadcom. The Licensee shall provide evidence that
413 all applicable Taxes have been paid to the appropriate taxing
414 authority by delivering to Broadcom receipts or notarized copies
415 thereof within thirty (30) days after the due date for such tax
418 5.2.4 Without prejudice to the survival of any other Agreement of Licensee
419 hereunder, the obligations of Licensee contained in this section
420 shall survive the payment in full of all payments hereunder.
425 (a) Broadcom may provide the following support services for the Licensed
426 Code to the extent Broadcom deems reasonable: Updates if and when
427 released and errata in Broadcom's sole discretion. Broadcom shall not
428 be responsible for any other support or maintenance of Licensed Code to
429 Licensee or its Subsequent Users, unless otherwise agreed to in
430 writing. Broadcom is under no obligation to provide support services
431 and may discontinue support services at any time. Broadcom will not
432 provide support for modified Licensed Code or Licensee's Derivative
433 Works of the Source Code.
435 (b) Any Updates to the Licensed Code provided by Broadcom (which shall only
436 be provided by Broadcom in its sole discretion) shall be governed by
437 the terms of this Agreement.
439 (c) If Licensee finds what Licensee considers an error in the Licensed
440 Code, Licensee will notify Broadcom so that Broadcom can, in its sole
441 discretion, make corrections to the Licensed Code or to future
442 revisions of the Licensed Code.
445 7. Term and Termination
447 7.1 Term. The term of this Agreement is five (5) years from the Effective
448 Date, subject to renewal upon mutual agreement of the parties.
450 7.2 Termination for Breach. If Licensee breaches any material provision of
451 this Agreement, Broadcom shall have the right to terminate this
452 Agreement, including all licenses granted hereunder, in addition to any
453 and all other remedies available at law or equity, unless Licensee
454 cures such breach within sixty (60) days ("Cure Period") after
455 receiving written notice of the breach by Broadcom. Licensee shall make
456 best efforts to cure the material breach in the least amount of time
457 possible within the Cure Period.
459 7.3 Insolvency. If either party: (a) becomes substantially insolvent;
460 (b) makes an assignment for the benefit of creditors; (c) files or has
461 filed against it a petition in bankruptcy or seeking reorganization;
462 (d) has a receiver appointed; or (e) institutes any proceedings for
463 liquidation or winding up or have such proceedings instituted against
464 it; then the other party may, in addition to other rights and remedies
465 it may have, terminate this Agreement immediately by written notice.
467 7.4 Consequences. Upon termination or expiration of this Agreement for any
468 reason whatsoever, the licenses, rights, and covenants granted
469 hereunder and any obligations imposed hereunder shall cease except as
470 otherwise expressly set forth herein as surviving termination or
473 7.5 Return of Confidential Information. Upon expiration or termination of
474 this Agreement for any reason or upon written request by Broadcom,
475 Licensee agrees to promptly return to Broadcom or, at Broadcom's
476 request, destroy and certify by an officer of Licensee in writing the
477 destruction of, all Broadcom Confidential Information furnished to
478 Licensee, including all Licensed Code and Documentation.
480 7.6 Survival of Licenses. Any Licensed Code and Documentation distributed
481 by Licensee prior to the effective date of any termination, expiration,
482 breach, or cancellation of this Agreement, shall remain licensed
483 (including any Licensed Code in inventory, manufactured in, or work in
484 progress with Licensee products) under the terms of this Agreement.
485 Licensee may retain an archival copy of portions of the Broadcom
486 Confidential Information, including Licensed Code and Documentation,
487 necessary for Licensee to provide ongoing technical support to
488 Subsequent Users using the Licensed Code ("Archival Materials") after
489 termination, expiration or cancellation of this Agreement. Such
490 Archival Materials may not be used for any other purpose without the
491 written consent from Broadcom. Licensee shall keep such Archival
492 Materials confidential for an additional five (5) years from the date
493 of termination, expiration, or cancellation of this Agreement,
494 regardless of when the Broadcom Confidential Information was disclosed.
496 7.7 Survival. In the event of expiration or termination of this Agreement
497 for any reason, the following sections of this Agreement shall survive:
498 1, 3, 4, 5, 7, 8, 9, and 10. Termination will not prejudice either
499 party to require performance of any obligation due at the time of
500 termination. All end user licenses in effect and in compliance with the
501 Agreement prior to effective termination or expiration shall survive
502 and continue in full force and effect in accordance with their terms
503 and Licensee may continue to perform its obligations thereunder,
504 including support obligations.
507 8. Disclaimer of All Warranties
509 8.1 THE PARTIES AGREE THAT BROADCOM FURNISHES THE LICENSED CODE AND
510 DOCUMENTATION TO LICENSEE "AS IS", UNSUPPORTED, WITHOUT WARRANTY OF ANY
511 KIND. BROADCOM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
512 THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
513 PURPOSE AND NON-INFRINGEMENT, INCLUDING ANY THAT MAY ARISE FROM A
514 COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. BROADCOM
515 SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY, OR
516 NONCONFORMITY IN THE LICENSED CODE OR DOCUMENTATION. BROADCOM MAKES NO
517 WARRANTY OR REPRESENTATION THAT THE LICENSED CODE OR DOCUMENTATION WILL
518 MEET LICENSEE'S REQUIREMENTS OR WILL WORK IN COMBINATION WITH ANY
519 HARDWARE OR SOFTWARE APPLICATION.
521 8.2 BROADCOM DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S
522 USE OF THE LICENSED CODE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION,
523 MILITARY, OR OTHER HIGH RISK DEVICE OR APPLICATION. LICENSEE REPRESENTS
524 AND WARRANTS THAT IT WILL NOT USE THE LICENSED CODE IN ANY MEDICAL,
525 NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER HIGH RISK DEVICE OR
526 APPLICATION. LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD BROADCOM
527 HARMLESS AGAINST ANY LOSS, LIABILITY, OR DAMAGE OF ANY KIND THAT
528 BROADCOM INCURS IN CONNECTION WITH BREACH OF THE WARRANTY IN THIS
531 8.3 BROADCOM DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE'S
532 CREATION AND USE OF DERIVATIVE WORKS OF THE SOURCE CODE. LICENSEE SHALL
533 INDEMNIFY, DEFEND, AND HOLD BROADCOM HARMLESS AGAINST ANY LOSS,
534 LIABILITY, OR DAMAGE OF ANY KIND THAT BROADCOM INCURS IN CONNECTION
535 WITH LICENSEE'S DERIVATIVE WORKS OF SOURCE CODE.
538 9. Limitation of Liability
540 IN NO EVENT SHALL BROADCOM, ITS EMPLOYEES, AFFILIATES OR SUPPLIERS BE
541 LIABLE FOR ANY LOST PROFITS, REVENUE, SALES OR DATA OR COSTS OF PROCUREMENT
542 OF SUBSTITUTE GOODS OR SERVICES, INTERRUPTION, LOSS OF BUSINESS INFORMATION
543 OR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, ECONOMIC OR
544 PUNITIVE DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT,
545 STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY OF LIABILITY, ARISING OUT OF
546 THE USE OR INABILITY TO USE THE LICENSED CODE OR DOCUMENTATION, EVEN IF
547 BROADCOM OR ITS EMPLOYEES, SUPPLIERS OR AFFILIATES ARE ADVISED OF THE
548 POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE APPLICABLE JURISDICTION
549 DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, BUT DOES ALLOW
550 LIABILITY TO BE LIMITED, THE LIABILITY OF BROADCOM, ITS EMPLOYEES,
551 AFFILIATES, OR SUPPLIERS IN SUCH CASES, SHALL BE LIMITED TO
557 10.1 Assignment. Licensee shall not assign this Agreement or any of its
558 rights or delegate any of its duties under this Agreement without the
559 prior written consent of Broadcom. Subject to the foregoing, this
560 Agreement will be binding upon, enforceable by, and inure to the
561 benefit of the parties and their respective successors and assigns.
562 Any attempted assignment in violation of this Section 10.1 shall be
565 10.2 Governing Law. This Agreement shall be construed and interpreted in
566 accordance with the law of the State of California without reference
567 to its conflicts of law principles.
569 10.3 Exclusive Jurisdiction. All disputes arising out of or related to this
570 Agreement will be subject to the exclusive jurisdiction and venue of
571 the California state courts of Santa Clara County, California in
572 United States District Court for the Northern District of California,
573 and the parties consent to the personal and exclusive jurisdiction of
576 10.4 Export Control. Licensee shall follow all export control laws and
577 regulations relating to the Licensed Code and Documentation. Licensee
578 hereby acknowledges responsibility for compliance with all applicable
579 US and local laws and regulations related to import and export and
580 acknowledges and agrees that the Licensed Code is subject to the U.S.
581 Export Administration Regulations. Diversion contrary to U.S. law is
582 prohibited. Licensee agrees that the Licensed Code is being or will be
583 acquired for, shipped, transferred, or re-exported, directly or
584 indirectly, to prohibited or embargoed countries, nor be used for any
585 prohibited end-use, such as nuclear activities, chemical/biological
586 weapons, or missile projects, unless expressly authorized by the U.S.
587 Government. Prohibited countries are set forth in the Supplement 1 to
588 Part 740 of the U.S. Export Administration Regulations. Countries
589 currently subject to U.S. embargo include: Cuba, Iran, N. Korea, Sudan
590 and Syria. This list is subject to change without further notice from
591 Broadcom and Licensee understands that compliance with the list as it
592 exists in fact, is required. Licensee assumes sole responsibility for
593 obtaining any/all licenses required for export or re-export. All ECCN
594 and CCATS numbers and License Exception information are subject to
595 change without notice. Modification in any way nullifies the
596 classification. It is therefore Licensee’s obligation as an exporter
597 to verify such information and comply with the then currently
598 applicable regulations. Any data provided by Broadcom is for
599 informational purposes only. Broadcom makes no representation or
600 warranty as to the accuracy or reliability of any classifications or
601 numbers. Any use of such classifications or numbers by Licensee is
602 without recourse to Broadcom and is at Licensee’s own risk. Broadcom
603 is in no way responsible for any damages, whether direct, indirect,
604 consequential, incidental or otherwise, suffered by Licensee as a
605 result of using or relying upon such classifications or numbers for
606 any purpose whatsoever. Licensee agrees to consult the EAR, the
607 Bureau of Industry and Security's Export Counseling Division, and
608 other appropriate sources before distributing, importing, or using
609 Broadcom products. Licensee may request software classification
610 information from Broadcom. If requested, Customer agrees to sign
611 written assurances and other export-related documents as may be
612 required by Broadcom.
614 10.5 Waiver. No failure or delay on the part of either party in the
615 exercise of any right or privilege hereunder shall operate as a waiver
616 thereof or of the exercise of any other right or privilege hereunder,
617 nor shall any single or partial exercise of any such right or
618 privilege preclude other or further exercise thereof or of any other
621 10.6 Notice. Any notice or claim provided for herein to Broadcom shall be
622 in writing and addressed as set forth below, and shall be given (i) by
623 personal delivery, effective upon delivery, or (ii) by first class
624 mail, postage prepaid, addressed as set forth below, effective one (1)
625 business day after proper deposit in the mail to Broadcom, 1320 Ridder
626 Park Drive, San Jose, California 95131, USA; Attn. Legal Department -
627 Important Legal Notice.
629 10.7 Severability. If any term, condition, or provision of this Agreement,
630 or portion of this Agreement, is found to be invalid, unlawful or
631 unenforceable to any extent, the parties will endeavor in good faith
632 to agree to such amendments that will preserve, as far as possible,
633 the intentions expressed in this Agreement. Such invalid term,
634 condition or provision will be severed from the remaining terms,
635 conditions and provisions, which will continue to be valid and
636 enforceable to the fullest extent permitted by law.
638 10.8 Other Rights. Nothing contained in this Agreement shall be construed
639 as conferring by implication, estoppel, or otherwise upon either party
640 or any third party any license or other right except, solely as to the
641 parties hereto, the rights expressly granted hereunder.
643 10.9 Integration; Modification. This Agreement embodies the final, complete
644 and exclusive statement of the terms agreed upon by the parties with
645 respect to the subject matter hereof and supersedes any prior or
646 contemporaneous representations, descriptions, courses of dealing, or
647 agreements in regard to such subject matter. No amendment or
648 modification of this Agreement shall be valid or binding upon the
649 parties unless stated in writing and signed by an authorized
650 representative of each party.
652 10.10 Publicity. All publicity concerning this transaction referring to the
653 other party shall require the other party's prior written approval
654 which shall not be unreasonably withheld.
656 10.11 Relationship of the Parties. The relationship of the parties hereto
657 is that of independent contractors. Neither party, nor its agents or
658 employees, shall be deemed to be the agent, employee, joint venture
659 partner, partner or fiduciary of the other party. Neither party shall
660 have the right to bind the other party, transact any business on
661 behalf of or in the name of the other party, or incur any liability
662 for or on behalf of the other party.