| NVIDIA(r) Tegra(r) Software License Agreement - Tegra Linux Driver Package |
| |
| BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE |
| (AS DEFINED BELOW) THE END USER OF THE LICENSED MATERIALS ("YOU" OR |
| "LICENSEE") AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING |
| THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL |
| ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND |
| THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT |
| AGREE TO THESE TERMS, |
| |
| * DO NOT (A) DOWNLOAD, INSTALL, COPY THE SOFTWARE; OR (B) ACCESS |
| OR USE THE LICENSED MATERIALS; AND |
| * PROMPTLY DESTROY THE LICENSED MATERIALS, OR RETURN THEM TO |
| THE PARTY FROM WHOM YOU ACQUIRED IT. |
| |
| NVIDIA Tegra Software License Agreement- Tegra Linux Driver Package |
| (the "Agreement") is entered into by and between NVIDIA Corporation, a |
| Delaware corporation, having its principal place of business at 2701 |
| San Tomas Expressway, Santa Clara, CA 95050 ("NVIDIA") and the |
| individual person or single legal entity ("Licensee" or "You") who |
| acknowledges and agrees to fully abide the terms and conditions of |
| this Agreement. |
| |
| 1. DEFINITIONS. |
| |
| 1.1 "Affiliate" means any company or legal entity that at various |
| times controls, is controlled by, or is under common control with |
| Licensee. Only for the purposes of this definition, "Control" means |
| (a) direct or indirect ownership of at least fifty percent (50%) of |
| the voting power of the shares or other securities for election of |
| directors (or other managing authority) of the controlled or commonly |
| controlled entity; (b) holding, directly or indirectly, the power to |
| exercise more than fifty percent (50%) of the entity's voting rights; |
| or (c) holding, directly or indirectly, the power to appoint the |
| majority of the members of the entity's board of directors (or similar |
| governing body), or in each case, the maximum percentage permitted |
| where a lesser percentage is required in a jurisdiction. The parties |
| shall be fully responsible for the actions / inactions of their |
| Affiliates under this Agreement. |
| |
| 1.2 "Competitors" shall mean any company that develops, |
| manufactures, produces, sells, distributes or licenses application |
| processors, computers-on-chips, systems-on-chips, CPUs, DSPs or GPU |
| technology. |
| |
| 1.3 "Confidential Information" shall mean (a) the Licensed |
| Materials; (b) either parties' technology, ideas, know-how, |
| documentation, processes, algorithms and trade secrets embodied in the |
| Licensed Materials; (c) any other information disclosed by either |
| party to the other that is (i) identified as "confidential," |
| "proprietary" or with a similar legend at the time of disclosure, or |
| (ii) if unmarked or disclosed orally or visually, are identified as |
| confidential at the time of disclosure and confirmed by a written |
| memorandum sent to the receiving party within thirty (30) calendar |
| days of disclosure summarizing the confidential information |
| sufficiently for identification; and (d) the terms and conditions of |
| this Agreement. |
| |
| Confidential Information shall not include any information which |
| is (e) published or otherwise available to the public other than by |
| breach of this Agreement by the receiving party; (f) rightfully |
| received by the receiving party from a third party without |
| confidentiality limitations; (g) independently developed by the |
| receiving party or its Affiliates as evidenced by appropriate records; |
| (h) known to the receiving party prior to its first receipt of same |
| from the disclosing party as evidenced by appropriate records; (i) |
| hereinafter disclosed by the disclosing party to a third party without |
| restriction on disclosure; or (j) approved for public release by |
| written authorization of the disclosing party. |
| |
| 1.4 "Contractor" shall mean any third party company or |
| individuals, including but not limited to original device |
| manufacturers, who Licensee engages for the purpose of such third |
| party performing services for the benefit of Licensee in connection |
| with this Agreement. |
| |
| 1.5 "Derivative Work(s)" means derivatives or modifications of the |
| Licensed Materials created by Licensee or NVIDIA, or a third party on |
| behalf of Licensee or NVIDIA respectively, which term shall include: |
| (i) for copyrightable or copyrighted material, any translation, |
| abridgement, revision or other form in which an existing work may be |
| recast, transformed or adapted; (ii) for work protected by topography |
| or mask right, any translation, abridgement, revision or other form in |
| which an existing work may be recast, transformed or adapted; (iii) |
| for patentable or patented material, any improvement; and (iv) for |
| material protected by trade secret, any new material derived from or |
| employing such existing trade secret. |
| |
| 1.6 "Excluded License" means any license that requires as a |
| condition of use, modification and/or distribution of software subject |
| to the Excluded License, that such software or other software |
| distributed and/or combined with such software be (i) disclosed or |
| distributed in source code form, (ii) licensed for the purpose of |
| making derivative works, or (iii) redistributable at no charge. |
| |
| 1.7 "Intellectual Property Rights" shall mean all proprietary |
| rights, including all patents, trademarks, copyrights, know-how, trade |
| secrets, mask works, including all applications and registrations |
| thereto, and any other similar protected rights in any country. |
| |
| 1.8 "Licensed Materials" shall mean the Software, related |
| documentation, Tegra development hardware (if applicable), and other |
| materials as NVIDIA may deliver hereunder from time to time. |
| |
| 1.9 "Licensee Products" shall mean Licensee's devices that have or |
| will contain NVIDIA's family of graphics, or media and communication, |
| or applications processors and related Software (as defined below) |
| supplied directly or indirectly by NVIDIA. |
| |
| 1.10 "Software" shall mean the NVIDIA Tegra Linux Driver Package, |
| full or partial copies thereof, and any Derivative Work(s) thereto |
| owned by NVIDIA. |
| |
| 2. LICENSE. |
| |
| 2.1 Grant. Subject to the terms and conditions of this Agreement, |
| including applicable Exhibits, NVIDIA grants to Licensee and its |
| Affiliates a personal, nonexclusive, worldwide, nonsublicensable, |
| nontransferable, nonassignable and royalty-free right and license: |
| |
| (a) to execute, compile, reproduce, display, perform, modify, |
| and to prepare and have prepared Derivative Work(s) of the |
| Software (in source code form as provided by NVIDIA) |
| solely to develop and customize Licensee Products for |
| Licensee's internal development purposes only; |
| |
| (b) to reproduce, transmit, transfer, distribute and |
| sublicense object code forms of the Software and/or |
| Derivative Work(s) and related documentation incorporated |
| into Licensee Products with a form of end user license |
| agreement that is as protective of NVIDIA's Intellectual |
| Property Rights as this Agreement; |
| |
| (c) for Contractors to exercise the foregoing rights of |
| Section 2.1 of this Agreement solely on behalf of |
| Licensee; and |
| |
| (d) NVIDIA may, in its sole discretion, require Licensee to |
| accept, distribute, and/or incorporate certain |
| modifications, updates, fixes, changes, or revisions to |
| the Licensed Materials used in Licensee Products in a |
| timely manner. |
| |
| 2.2 Reservation of Rights. NVIDIA reserves all rights not |
| expressly granted to Licensee in Section 2.1 herein. |
| |
| 2.3 License Grant Back. Licensee hereby grants to NVIDIA and its |
| Affiliates an exclusive, worldwide, irrevocable, perpetual, |
| sublicensable (through multiple tiers of sublicensees), royalty-free |
| right, fully paid-up right and license to the Derivative Work(s) (in |
| source and object code form) created by Licensee's employees, |
| Affiliates or Contractors so that NVIDIA may copy, modify, create |
| Derivative Works thereof, to use, have used, import, make, have made, |
| sell, offer to sell, sublicense (through multiple tiers of |
| sublicensees), distribute (through multiple tiers of distributors) |
| such Derivative Work(s) on a stand-alone basis or as incorporated into |
| the Software or other NVIDIA products. For the sake of clarity, |
| NVIDIA is not prohibited or otherwise restricted from independently |
| developing new features or functionality with respect to the Licensed |
| Materials. |
| |
| 2.4 Delivery Obligation of Derivative Work(s) Licensee shall |
| deliver, upon NVIDIA's request, the Derivative Work(s) created by |
| Licensee or on behalf of Licensee to NVIDIA pursuant to Section 2.3 of |
| this Agreement. |
| |
| 3. LIMITATIONS; OBLIGATIONS. |
| |
| 3.1 Restrictions. Except as expressly permitted by this |
| Agreement, Licensee shall not: |
| |
| (a) use the Software and/or the Derivative Work(s) created by |
| Licensee or on behalf of Licensee on any non-NVIDIA |
| application processors ("External Systems"), except on |
| External Systems for the sole purpose of programming, |
| configuration or performing diagnostics on an NVIDIA |
| application processor; |
| |
| (b) reverse engineer, decompile, disassemble, modify or create |
| derivative works of any portion of the Licensed Materials |
| (in object code form) or allow any third party (including |
| Licensee's Affiliates or Contractors) to do any of the |
| foregoing; |
| |
| (c) sublicense, rent, lease, loan, timeshare, sell, |
| distribute, disclose, publish, assign or transfer any |
| rights, grant a security interest in, or transfer |
| possession of the Licensed Materials to any third party |
| without NVIDIA's express prior written consent; |
| |
| (d) distribute the Licensed Materials on a standalone basis; |
| or |
| |
| (e) under any circumstances allow the Software to be used, |
| pursuant to this Agreement, on NVIDIA's Competitors' |
| software operating and/or hardware platforms. |
| |
| 3.2 No Implied Licenses. Nothing in this Agreement shall be |
| construed as granting to Licensee by implication, estoppel or |
| otherwise, (a) a license to any NVIDIA technology other than the |
| Licensed Materials; or (b) any additional license rights for the |
| Licensed Materials other than the licenses expressly granted in this |
| Agreement. |
| |
| 3.3 Additional Licensing Obligations. Licensee acknowledges and |
| agrees that it is Licensee's sole responsibility to obtain any, |
| additional, third party licenses required to make, have made, use, |
| have used, sell, import, and offer for sale Licensee Products that |
| include or incorporate any third party technology such as operating |
| systems, audio and/or video encoders and decoders or any technology |
| from, including but not limited to, Microsoft, Thomson, Fraunhofer |
| IIS, Sisvel S.p.A., MPEG-LA, and Coding Technologies ("Third Party |
| Components"). Licensee acknowledges and agrees that NVIDIA has not |
| granted to Licensee under this Agreement any necessary patent rights |
| with respect to those Third Party Components identified in the |
| exhibits of this Agreement ("Third Party Licensing Terms and |
| Notices"). As such, Licensee's use of the Third Party Components may |
| be subject to further restrictions and terms and conditions described |
| in the Third Party Licensing Terms and Notices. Licensee acknowledges |
| and agrees that Licensee is solely and exclusively responsible for |
| obtaining any and all authorizations and licenses required for the |
| distribution and/or incorporation of the Third Party Components |
| specified in the Third Party Licensing Terms and Notices. |
| |
| For the avoidance of doubt, except as expressly authorized by a |
| separate written agreement by and between Licensee and Adobe Systems, |
| Inc. ("Adobe"), Licensee has no right to distribute, sublicense, or |
| otherwise commercialize Adobe's Third Party Components identified in |
| Exhibit A-2. |
| |
| Excluding Section 9.5 of this Agreement, Licensee acknowledges and |
| agrees that NVIDIA may at various times update the Third Party |
| Licensing Terms and Notices without any advance written notice to |
| Licensee. Licensee agrees to be bound by such Third Party Licensing |
| Terms and Notices as they may be updated. In the event that NVIDIA's |
| license rights to the Third Party Components are terminated and/or |
| expired, Licensee agrees NVIDIA shall no longer have the obligation to |
| deliver such Third Party Components to Licensee affected by such |
| termination and/or expiration. |
| |
| Licensee shall, at its own expense fully indemnify, hold harmless, |
| defend, and settle any claim, suit or proceeding that is instituted by |
| a third party against NVIDIA and its officers, employees or agents, to |
| the extent such claim, suit or proceeding is based on (a) a breach by |
| Licensee of any of the representations and warranties in Section 7 |
| ("Warranties") of this Agreement; or (b) Licensee's failure to fully |
| satisfy and/or comply with the third party licensing obligations |
| expressly contained in the Third Party Licensing Terms and Notices (a |
| "Claim"). |
| |
| In the event of a Claim, NVIDIA agrees to: |
| |
| (a) promptly inform Licensee and furnish Licensee a copy of |
| the Claim; |
| |
| (b) make commercially reasonable efforts to give such evidence |
| in NVIDIA's possession, custody or control as is |
| reasonable to Licensee, at Licensee's request and expense, |
| specifically and reasonably applicable to the Claim; |
| |
| (c) provide Licensee commercially reasonable assistance in the |
| defense thereof, at Licensee's expense; and |
| |
| (d) give Licensee sole control of the defense thereof and all |
| negotiations for its settlement and compromise, which |
| shall not be finalized without the prior written consent |
| of NVIDIA. |
| |
| NVIDIA's failure to promptly notify Licensee shall not relieve |
| Licensee of any liability or obligations that it has to NVIDIA, except |
| to the extent Licensee demonstrates that the defense of such action is |
| prejudiced by the failure or delay in giving notice. If NVIDIA |
| retains counsel, it will be at NVIDIA's own expense. |
| |
| In the event of a Claim, Licensee agrees to: |
| |
| (a) pay all damages finally awarded against NVIDIA or agreed |
| upon in settlement by Licensee, which shall not be |
| finalized without the prior written consent of NVIDIA, |
| (including other reasonable costs incurred by NVIDIA, |
| including reasonable attorneys fees, in connection with |
| enforcing this paragraph); |
| |
| (b) reimburse NVIDIA for any licensing fees and/or penalties |
| incurred by NVIDIA in connection with a Claim; and |
| |
| (c) immediately procure/satisfy the third party licensing |
| obligations expressly contained in the Third Party |
| Licensing Terms and Notices. |
| |
| 3.4 Proprietary Rights Notices. Licensee shall not remove, alter |
| or obscure any copyright, trademark, patent notices or other |
| proprietary rights notices that appear on the Licensed Materials. |
| Licensee shall use commercially reasonable efforts to require its |
| channel entities to comply with the provisions of this Section 3.4. |
| |
| 3.5 No Excluded Licenses. The licenses granted in Section 2.1 do |
| not include the right to, and Licensee shall not: (a) create |
| Derivative Work(s) of the Licensed Materials in any manner that would |
| cause the Licensed Materials, in whole or in part, to become subject |
| to the terms of an Excluded License; or (b) distribute the Licensed |
| Materials (or Derivative Works thereof) in any manner that would cause |
| the Licensed Materials, or any component thereof, to become subject to |
| the terms of an Excluded License. |
| |
| 3.6 Source Code Protection. In addition to Licensee's |
| restrictions and obligations in connection with the Licensed Materials |
| set forth in this Agreement, Licensee agrees that source code to the |
| Licensed Materials constitutes highly Confidential Information and |
| proprietary trade secrets of NVIDIA and shall be protected by (a) the |
| confidentiality obligations set forth in Section 5.1; and (b) any |
| applicable non-disclosure agreement ("NDA"). In addition to the |
| confidentiality obligations set forth in Section 5.1 and the NDA, |
| Licensee agrees to the following: |
| |
| (a) Licensee shall only allow its employees, Contractors, and |
| its Affiliates' employees and Contractors who have a need |
| to know basis to use the source code to the Software in |
| order for Licensee or its Affiliates to exercise their |
| license rights under this Agreement, provided that any |
| breach of this Agreement by such parties is considered |
| Licensee's breach of this Agreement and Licensee shall be |
| liable for such breach to the same extent as if it |
| committed the breach itself. Upon NVIDIA's request, |
| Licensee shall provide NVIDIA a list of all employees |
| (including employees of Affiliates), and Contractors who |
| have been granted source code access to the Licensed |
| Materials and update and maintain the accuracy of this |
| list at all times; |
| |
| (b) Licensee shall protect the source code of the Licensed |
| Materials to the same degree as Licensee protects its own |
| Confidential Information; |
| |
| (c) Licensee shall not grant third parties, excluding |
| Affiliates or Contractors, access to the source code of |
| the Licensed Materials; |
| |
| (d) Licensee shall restrict disclosure and access to and use |
| of the Licensed Materials (in source code form) to those |
| employees (including those of its Affiliates and/or |
| Contractors) who have agreed to be bound by a written |
| confidentiality agreement which incorporates the |
| protections and restrictions no less protective than those |
| set forth in this Agreement with respect to the Licensed |
| Materials; |
| |
| (e) Licensee shall secure the source code to the Software and |
| Licensed Materials in a secure location at all times; |
| |
| (f) Licensee shall not use the Licensed Materials and/or |
| Derivative Work(s) created by Licensee to compete against |
| NVIDIA or shall not use the Licensed Materials and/or |
| Derivative Work(s) in litigation against NVIDIA; and |
| |
| (g) Licensee's employees, Affiliates, or Contractors who have |
| been exposed to source code of the Licensed Materials |
| shall not be permitted to use any ideas, techniques or |
| know-how obtained from their respective use of the |
| Licensed Materials for any engagement, including but not |
| limited to services or product development (hardware or |
| software) work for the benefit of NVIDIA's Competitors. |
| |
| 3.7 Defensive Suspension. If Licensee and/or its Affiliates |
| commence or participates in any legal proceeding against NVIDIA, then |
| NVIDIA may, in its sole discretion, suspend or terminate all license |
| grants and any other rights provided under this Agreement during the |
| pendency of such legal proceedings. |
| |
| 4. OWNERSHIP; FEEDBACK. |
| |
| 4.1 By NVIDIA. Except as expressly licensed to Licensee under |
| this Agreement, NVIDIA reserves all right, title and interest, |
| including but not limited to all Intellectual Property Rights, in and |
| to the Licensed Materials and any Derivative Work(s) made thereto by |
| or on behalf of NVIDIA. |
| |
| 4.2 Feedback by Licensee. Licensee may, but is not obligated to, |
| provide to NVIDIA any suggestions, comments and feedback regarding the |
| Licensed Materials that are delivered by NVIDIA to Licensee under this |
| Agreement (collectively, "Licensee Feedback"). NVIDIA may use and |
| include any Licensee Feedback that Licensee voluntarily provides to |
| improve the Licensed Materials or other related NVIDIA technologies. |
| Accordingly, if Licensee provides Licensee Feedback, Licensee grants |
| NVIDIA and its licensees a perpetual, irrevocable, worldwide, |
| royalty-free, fully paid-up license grant to freely use, have used, |
| sell, modify, reproduce, transmit, license, sublicense (through |
| multiple tiers of sublicensees), distribute (through multiple tiers of |
| distributors), and otherwise commercialize the Licensee Feedback in |
| the Licensed Materials or other related technologies. |
| |
| 5. CONFIDENTIAL INFORMATION; ACCESS TO SOFTWARE. |
| |
| 5.1 Protection of Confidential Information. The parties shall not |
| use or disclose any Confidential Information received from the other |
| party, except as expressly authorized by this Agreement, and shall |
| protect all such Confidential Information using the same degree of |
| care which the receiving party uses with respect to its own |
| proprietary information, but in no event with safeguards less than a |
| reasonably prudent business would exercise under similar |
| circumstances. The parties shall not use the Confidential Information |
| for purposes other than those necessary to directly further the |
| purposes of this Agreement. Except as expressly provided in this |
| Agreement, no ownership or license rights are granted in any |
| Confidential Information. The parties shall use commercially |
| reasonable efforts to prevent any actual or threatened unauthorized |
| copying, use or disclosure of Confidential Information, and shall |
| promptly notify the other party of any such actual or threatened |
| unauthorized disclosure or use. If any Confidential Information must |
| be disclosed to any third party by reason of legal, accounting or |
| regulatory requirements beyond the reasonable control of the |
| disclosing party, the disclosing party shall promptly notify the other |
| party of the order or request and permit the other party (at its own |
| expense) to seek an appropriate protective order. |
| |
| For the sake of clarity, the parties agree that, notwithstanding |
| the preceding paragraph, any and all information identified as |
| Confidential Information (as defined in the NDA) by the disclosing |
| party in connection with this Agreement shall also be protected under |
| the NDA; provided, however, that in the event of any conflict between |
| the confidentiality obligations pursuant to this Agreement and the |
| obligations pursuant to the NDA with regard to any Confidential |
| Information (as defined in the NDA) in connection with this Agreement, |
| including, without limitation, the source code to the Licensed |
| Materials, the terms of this Agreement shall prevail. |
| |
| 6. TERM; TERMINATION |
| |
| 6.1 Term. This Agreement and the licenses granted hereunder shall |
| be effective as of the date Licensee first uses the Licensed Materials |
| ("Effective Date") and continue for a period of one (1) year (the |
| "Initial Term"), unless terminated in accordance with Section 6.2. |
| Unless either party notifies the other party of its intent to |
| terminate this Agreement at least one (1) month prior to the end of |
| the Initial Term or the applicable renewal period ("Renewal |
| Period(s)"), this Agreement will be automatically renewed for one (1) |
| year Renewal Periods, provided however that this Agreement will |
| automatically expire at such time when Licensee no longer intends to |
| use the Licensed Materials for the authorized purposes described in |
| this Agreement, at this time Licensee will comply with the termination |
| provisions in Section 6.2 below. |
| |
| 6.2 Termination. Either party may terminate this Agreement |
| immediately upon written notice for the material breach of the other |
| party, which material breach is curable and has remained uncured for a |
| period of thirty (30) days from the date of delivery of written notice |
| thereof to the other party. Upon the termination or expiration of |
| this Agreement, |
| |
| (a) Licensee shall (i) immediately cease using the Licensed |
| Materials for any purpose whatsoever; (ii) immediately |
| destroy or return to NVIDIA all materials belonging to |
| NVIDIA, including without limitation all copies of the |
| Software and NVIDIA Confidential Information then in |
| Licensee's possession or control; and (iii) certify to |
| NVIDIA in writing that it has done so; and |
| |
| (b) NVIDIA shall (i) immediately destroy or return to Licensee |
| all materials belonging to Licensee that were provided to |
| NVIDIA pursuant to this Agreement, including without |
| limitation, Licensee's Confidential Information then in |
| NVIDIA's possession or control; and (ii) certify to |
| Licensee in writing that it has done so. These remedies |
| shall be cumulative and in addition to any other remedies |
| available to NVIDIA. |
| |
| 6.3 Survival. Those provisions in this Agreement, which by their |
| nature need to survive the termination or expiration of this |
| Agreement, The following Sections shall survive termination or |
| expiration of the Agreement, including but not limited to Sections 1, |
| 2.2, 2.3, 2.4, 3, 4, 5, 6.2 , 6.3, 7, 8, 9 and Exhibit A. |
| |
| 7. WARRANTIES |
| |
| THE LICENSED MATERIALS ARE LICENSED FOR LICENSEE'S USE "AS IS" AND |
| NVIDIA AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND |
| STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF |
| MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT |
| OF THIRD PARTY RIGHTS. NVIDIA DOES NOT REPRESENT OR WARRANT THAT THE |
| LICENSED MATERIALS WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE |
| OPERATION OF THE SOFTWARE CONTAINED THEREIN OR RESULTING THEREFROM |
| WILL BE UNINTERRUPTED OR ERROR-FREE. NO INFORMATION OR ADVICE GIVEN |
| BY NVIDIA, ITS REPRESENTATIVES, AGENTS OR EMPLOYEES SHALL IN ANY WAY |
| INCREASE THE SCOPE OF THIS WARRANTY. |
| |
| (A) Licensee represents and warrants that it has, or will have |
| prior to the commercial release of the Licensee Products, a valid and |
| current license to all the Third Party Components referenced in the |
| exhibits of this Agreement, for use in connection with Licensed |
| Materials provided pursuant to this Agreement and Licensee Products. |
| |
| |
| 8. LIMITATION OF LIABILITY |
| |
| IN NO EVENT SHALL: |
| |
| (A) NVIDIA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, |
| PUNITIVE OR SPECIAL DAMAGES, OF ANY KIND OR CHARACTER, INCLUDING LOST |
| PROFITS, LOST REVENUE, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, |
| LOSS OF DATA OR USE, AND CLAIMS BY ANY THIRD PARTY, ARISING OUT OF OR |
| RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT; AND |
| |
| (B) NVIDIA'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT |
| EXCEED THE AMOUNT PAID BY LICENSEE FOR USE OF THE LICENSED MATERIALS. |
| THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH |
| PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS |
| EXCLUSION AND LIABILITY LIMITATION SHALL APPLY EVEN IF ANY REMEDY |
| FAILS OF ITS ESSENTIAL PURPOSE. |
| |
| 9. GENERAL |
| |
| 9.2 Governing Law. This Agreement shall be governed in all |
| respects by the laws of the United States and of the State of |
| Delaware, without regard to the conflicts of laws principles thereof. |
| |
| 9.3 Jurisdiction. The state and/or federal courts residing in |
| Santa Clara County, California shall have exclusive jurisdiction over |
| any dispute or claim arising out of this Agreement. |
| |
| 9.4 Severability. If for any reason a court of competent |
| jurisdiction finds any provision of this Agreement, or portion |
| thereof, to be unenforceable, that provision of the Agreement will be |
| enforced to the maximum extent permissible so as to affect the intent |
| of the parties, and the remainder of this Agreement will continue in |
| full force and effect. This Agreement has been negotiated by the |
| parties and their respective counsel and will be interpreted fairly in |
| accordance with its terms and without any strict construction in favor |
| of or against either party. |
| |
| 9.5 Amendments. The Agreement shall not be modified except by a |
| written agreement that names this Agreement and any provision to be |
| modified, is dated subsequent to the Effective Date, and is signed by |
| duly authorized representatives of both parties. |
| |
| 9.6 No Waiver. No failure or delay on the part of either party in |
| the exercise of any right, power or remedy under this Agreement or |
| under law, or to insist upon or enforce performance by the other party |
| of any of the provisions of this Agreement or under law, shall operate |
| as a waiver thereof, nor shall any single or partial exercise of any |
| right, power or remedy preclude other or further exercise thereof, or |
| the exercise of any other right, power or remedy; rather the |
| provision, right, or remedy shall be and remain in full force and |
| effect. |
| |
| 9.7 No Assignment. This Agreement, and each party's rights and |
| obligations herein, may not be assigned, subcontracted, delegated, or |
| otherwise transferred by either party without the other party's prior |
| written consent, and any attempted assignment, subcontract, |
| delegation, or transfer in violation of the foregoing will be null and |
| void. The terms of this Agreement shall be binding upon assignees. |
| |
| 9.8 Independent Contractors. NVIDIA's relationship to Licensee is |
| that of an independent Contractor, and neither party is an agent or |
| partner of the other. Neither party will have, and will not represent |
| to any third party that it has, any authority to act on behalf of the |
| other party. |
| |
| 9.9 Export Restrictions. The parties acknowledge that the |
| Licensed Materials are subject to U.S. export control laws and |
| regulations. The parties agree to comply with all applicable |
| international and national laws that apply to the Licensed Materials, |
| including the U.S. Export Administration Regulations, as well as |
| end-user, end-use and destination restrictions issued by U.S. and |
| other governments. |
| |
| 9.10 U.S. Government Legend. If Licensee is a branch or agency of |
| the United States Government, the following provision applies. Any |
| software provided under this Agreement, including any releases are |
| comprised of "commercial computer software" and "commercial computer |
| software documentation" as such terms are used in 48 C.F.R. 12.212 and |
| are provided to the Government (i) for acquisition by or on behalf of |
| civilian agencies, consistent with the policy set forth in 48 |
| C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the |
| Department of Defense, consistent with the policies set forth in 48 |
| C.F.R. 227.7202-1 and 227.7202-3. |
| |
| 9.11 Headings. The headings in this Agreement are for the sole |
| purpose of convenience of reference and shall not in any way limit or |
| affect the meaning or interpretation of any of the terms or provisions |
| of this Agreement. |
| |
| 9.12 Counterparts. This Agreement may be executed in |
| counterparts, each of which shall be deemed an original, and all of |
| which together shall constitute one instrument. |
| |
| 9.13 No Third Party Beneficiaries. This Agreement is solely |
| between NVIDIA and Licensee. There are no third party beneficiaries, |
| express or implied, to this Agreement. |
| |
| 9.14 Entire Agreement. This Agreement constitutes the entire |
| agreement between the parties with respect to the subject matter |
| contemplated herein, and merges all prior and contemporaneous |
| communications. |
| |
| |
| |
| Exhibit A |
| |
| |
| 1. Coding Technologies/AAC+ |
| |
| Licensee shall be solely responsible for either obtaining a proper |
| patent license under the Essential Patents for end products or to |
| notify Licensee's respective customers of their obligations to obtain |
| a proper patent license under the Essential Patents for end products |
| in which the NVIDIA application processor(s) and/or the NVIDIA |
| software package may be used. For the purpose of this paragraph, |
| "Essential Patents" means patents which are infringed by the |
| manufacture, offer for sale, sale (or other form of |
| commercialization), use or import of products (hardware or software) |
| implementing, incorporating, containing or using AACPLUSV2 or by the |
| application of processes involving AACPLUSV2, including those which |
| are infringed by any source code provided as part of any specification |
| characterizing AACPLUSV2. |
| |
| 2. Thomson Multimedia/MP3 |
| |
| Supply of the Licensed Materials does not convey a license under |
| the relevant intellectual property of Thomson Multimedia and/or |
| Fraunhofer Gesellschaft nor imply any right to use the Licensed |
| Materials in any finished end user or ready-to-use final product. An |
| independent license for such use is required. For details, please |
| visit http://www.mp3licensing.com |
| |
| 3. MPEG L.A., L.L.C./MPEG-2 |
| |
| USE OF THE APPLICABLE NVIDIA SOFTWARE PACKAGE IN ANY MANNER THAT |
| COMPLIES WITH THE MPEG-2 STANDARD IS EXPRESSLY PROHIBITED WITHOUT A |
| LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH |
| LICENSE IS AVAILABLE FROM MPEG LA, L.L.C., 250 STREELE STREET, SUITE |
| 300, DENVER, COLORADO 80206. NO LICENSE IS GRANTED HEREIN, BY |
| IMPLICATION OR OTHERWISE, TO LICENSEE TO USE MPEG 2 INTERMEDIATE |
| PRODUCTS MANUFACTURED OR SOLD BY LICENSEE. |
| |
| 4. MPEG-2 AAC |
| |
| Licensee shall be solely responsible for either obtaining a valid |
| and current license from AT&T Corp., Dolby Laboratories Licensing |
| Corporation, Fraunhofer-Gesellscaft, and Sony Corporation for the |
| applicable version of MPEG-2 AAC. |
| |
| 5. Fraunhofer-Gesellschaft MPEG-4 HE-AAC |
| |
| Licensee understands and accepts that (a) it may be necessary to |
| execute a patent license with the appropriate licensing entities in |
| order to obtain all rights necessary to create Licensee's products; |
| and (b) Licensee will contact the appropriate licensing entities, |
| e.g. Via Licensing, and negotiate in good faith the adequate |
| contracts, if any. In addition, it is hereby understood that in the |
| event that, besides the Fraunhofer-Gesellschaft patents licensed |
| through such appropriate licensing entities, any further |
| Fraunhofer-Gesellschaft patent shall be required in order to use the |
| Licensed Materials, Fraunhofer-Gesellschaft shall not request from |
| Licensee any additional payment in order to receive a license to such |
| further Fraunhofer-Gesellschaft patent, as long as Licensee remains a |
| valid licensee of such appropriate licensing entity. |
| |
| 6. Microsoft Windows Media |
| |
| Licensee acknowledges that Microsoft Windows Media is provided in |
| object code form only, solely for the Licensee's own internal |
| evaluation and testing purposes. |
| |
| |
| Licensee further acknowledges the following notice: "This product |
| includes technology owned by Microsoft Corporation and cannot be used |
| or further distributed without a license from Microsoft or a Microsoft |
| affiliate." |
| |
| 7. Microsoft PlayReady or WMDRM technology |
| |
| Licensee acknowledges that the Licensed Materials (i) contain a |
| certain version of Microsoft PlayReady or WMDRM technology ("PlayReady |
| Technology"); and (ii) are subject to certain intellectual property |
| rights of Microsoft and cannot be used or distributed further without |
| the appropriate license(s) from Microsoft. |
| |
| Licensee represents and warrants that (i) Licensee holds a current |
| and valid license under a PlayReady Device Agreement and Intermediated |
| Product Distribution License, a PlayReady Final Product Distribution |
| License, or a like agreement, with Microsoft or a Microsoft affiliate; |
| and (ii) Licensee will use the PlayReady Technology provided under |
| this Agreement in Licensees' software, hardware product, or service |
| offering that (a) is intended for distribution to and/or use by end |
| users; and (b) is in a final form with Licensee-owned brand and/or |
| logo most prominently displayed brand in a fully functional user |
| interface. |
| |
| 8. Ogg Vorbis Legal Information |
| |
| Copyright (c) 2002, Xiph.org Foundation |
| |
| Redistribution and use in source and binary forms, with or without |
| modification, are permitted provided that the following conditions are |
| met: |
| |
| * Redistributions of source code must retain the above copyright |
| notice, this list of conditions and the following disclaimer. |
| |
| * Redistributions in binary form must reproduce the above |
| copyright notice, this list of conditions and the following |
| disclaimer in the documentation and/or other materials provided |
| with the distribution. |
| |
| * Neither the name of the Xiph.org Foundation nor the names of its |
| contributors may be used to endorse or promote products derived |
| from this software without specific prior written permission. |
| |
| THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND |
| CONTRIBUTORS ``AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, |
| INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF |
| MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE |
| DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE |
| FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR |
| CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF |
| SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR |
| BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, |
| WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE |
| OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN |
| IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. |
| |
| EXHIBIT A-2 |
| |
| Adobe Flash Demonstration and Evaluation License ("Adobe License") |
| Terms and Conditions |
| |
| 1. Software License. NVIDIA hereby grants to Licensee a |
| non-exclusive, non-transferable, royalty free right to use, install, |
| evaluate, test, demonstrate, publicly perform and display object code |
| versions of the Adobe Software together with Licensee's product. For |
| the avoidance of doubt, Licensee has no right to distribute, |
| sublicense, or otherwise commercialize the Adobe Software, unless and |
| until Adobe confirms in writing that Licensee has entered into an |
| appropriate license agreement with Adobe. |
| |
| "Adobe Software" means the Adobe Flash Player software version 10 |
| as modified by NVIDIA, in object code form as delivered by NVIDIA |
| hereunder. NVIDIA may update the Adobe Software from time to time, in |
| its sole discretion. |
| |
| 2. Period. Licensee's limited license hereunder shall commence on |
| the Effective Date and remain in effect until terminated by NVIDIA |
| upon five (5) days written notice. |
| |
| 3. Rights. Licensee agrees that it shall take no action in |
| furtherance of seeking any patent rights or other intellectual |
| property rights to the Adobe Software. The Software shall be returned |
| to NVIDIA within fifteen (15) days of the end of the Evaluation |
| Period. Licensee shall have no rights to sublicense or distribute the |
| Software. |
| |
| 4. Fees. There shall be no fees owed by either party under this |
| Adobe License. |
| |
| 5. Delivery. NVIDIA shall deliver the Adobe Software to Licensee |
| shortly after execution of this Adobe License. |
| |
| 6. Restrictions. Licensee does not have any rights to make use of |
| the Adobe Software, or in any manner, copy, disseminate, or in any way |
| circulate the Adobe Software other than as permitted under Section 1 |
| above. Licensee shall limit access to the Adobe Software to its |
| employees who need to know such information and who have agreed, |
| either as a condition to employment or prior to obtaining the Adobe |
| Software, to be bound by terms and conditions of confidentiality. The |
| rights herein do not entitle Licensee to use the Adobe Software, or |
| any technology or intellectual property contained within it, as |
| reference or inspiration for developing or creating another product in |
| any way based upon the Adobe Software. Licensee agrees not to |
| decompile, reverse engineer, reverse assemble, disassemble, or |
| otherwise reverse engineer or reduce the Adobe Software provided in |
| object code form to a human-perceivable form. |
| |
| 7. Ownership. All right, title, and interest in the Adobe |
| Software, shall be owned by Adobe. Except as set forth in Section 1 |
| above, Licensee acquires no license to any NVIDIA or Adobe |
| intellectual property rights pursuant to this Adobe License. The Adobe |
| Software, and any partial or whole copies thereof, and all copyright, |
| patent, trade secret and other intellectual property rights therein, |
| are and remain the property of Adobe and NVIDIA. The provisions of |
| this paragraph shall survive expiration or earlier termination of this |
| Adobe License. NVIDIA does not directly or indirectly grant, or |
| purport to grant, to Licensee any rights or immunities under Adobe's |
| intellectual property rights that will subject such intellectual |
| property rights to an open source license or scheme in which there is |
| or could be interpreted to be a requirement that as a condition of |
| use, modification and/or distribution, the Adobe Software be: (i) |
| disclosed or distributed in source code form; (ii) licensed for the |
| purpose of making derivative works; or (iii) redistributable at no |
| charge. |
| |
| |
| 8. Effect of Termination. Upon termination, the rights granted |
| hereunder shall cease and all materials furnished to Licensee by |
| NVIDIA hereunder relating to the Adobe Software shall be returned to |
| it promptly, together with any copies thereof. |
| |
| 9. Disclaimer. NVIDIA PROVIDES THE ADOBE SOFTWARE "AS IS" AND |
| WITHOUT ANY WARRANTIES. THE ENTIRE RISK AS TO THE RESULTS AND |
| PERFORMANCE OF THE ADOBE SOFTWARE IS ASSUMED BY LICENSEE. NVIDIA |
| DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH REGARD |
| TO THE ADOBE SOFTWARE OR ANY OTHER INFORMATION PROVIDED HEREUNDER, |
| INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF |
| MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT |
| OF THIRD PARTY RIGHTS. |
| |
| 10. Limitation on Liability. NOTWITHSTANDING ANY PROVISION IN THIS |
| AGREEMENT, NEITHER NVIDIA NOR ADOBE SHALL BE LIABLE TO LICENSEE OR ANY |
| THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL |
| DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, |
| WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, |
| BUSINESS, OR GOODWILL, HOWEVER CAUSED AND ON WHATEVER THEORY, WHETHER |
| BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), |
| THE FAILURE OR ASSERTED FAILURE OF NVIDIA TO PERFORM ITS OBLIGATIONS |
| HEREUNDER, OR OTHERWISE, AND WHETHER OR NOT NVIDIA HAS BEEN ADVISED OR |
| IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NVIDIA's aggregate |
| liability to Licensee or any third party arising out of or in |
| connection with this Adobe License or any collateral agreement, |
| whether in contract, tort (including negligence), or otherwise, shall |
| be limited to fifty dollars (US$50). |
| |
| 11. Relief. As the unauthorized distribution of the Adobe Software |
| may diminish the value to NVIDIA or Adobe of the proprietary interests |
| that are the subject of this Adobe License, if Licensee breaches any |
| of its obligations under this Adobe License, NVIDIA or Adobe shall be |
| entitled to seek equitable relief to protect its interests therein, |
| including but not limited to injunctive relief, as well as money |
| damages. |
| |
| 12. Export Restrictions. The parties acknowledge that the Adobe |
| Software is subject to U.S. export control laws and regulations. The |
| parties agree to comply with all applicable international and national |
| laws that apply to the Adobe Software, including the U.S. Export |
| Administration Regulations and the United States Department of |
| Commerce, as well as end-user, end-use and destination restrictions |
| issued by U.S. and other governments. |
| |
| 13. Evaluation Feedback. |
| |
| 13.1 Feedback by Licensee. You must provide to NVIDIA any |
| suggestions, comments and feedback regarding the Adobe Software |
| ("Licensee Feedback"). NVIDIA and Adobe may use and include any |
| Licensee Feedback that you provide to improve the Software or other |
| technologies and / or products. Accordingly, you grant to NVIDIA, its |
| subsidiaries, its affiliates and its licensees a perpetual, |
| irrevocable, worldwide, royalty-free, fully paid-up license to freely |
| use, have used, sell, modify, reproduce, transmit, license, sublicense |
| (through multiple tiers of sublicensees, including to Adobe), |
| distribute (through multiple tiers of distributors), and otherwise |
| commercialize the Licensee Feedback in the Adobe Software or other |
| NVIDIA or Adobe technologies and/or products. |
| |
| 13.2 Confidential Information. Licensee Feedback is considered |
| Adobe's confidential information ("Adobe Confidential Information"). |
| You shall not use or disclose any Adobe Confidential Information |
| except as expressly authorized herein, and you shall protect all such |
| Adobe Confidential Information using the same degree of care you use |
| with respect to your own proprietary information, but in no event with |
| safeguards less than a reasonably prudent business would exercise |
| under similar circumstances. You agree to take prompt and appropriate |
| action to prevent unauthorized use or disclosure of any Adobe |
| Confidential Information. |
| |
| |
| |
| |
| Exhibit E |
| |
| (Open Source Portions) |
| |
| Licensee agrees that the following terms and conditions shall |
| apply to its use of certain portions (as referenced below) of the |
| applicable software packages selected by the Licensee in connection |
| with this Agreement. For the sake of clarity, Licensee agrees that the |
| terms and conditions of the Agreement shall continue to govern |
| Licensee's use of the Software and Licensed Materials. The parties |
| agree that the capitalized terms used in this exhibit shall have the |
| same meaning ascribed to such term in the Agreement or any amendment |
| thereto. |
| |
| 1. NVIDIA agrees that the open source portions expressly licensed |
| under terms and conditions of Excluded Licenses (collectively the |
| "Open Source Portions"), shall not be subject to the restrictions set |
| forth in the following section ("No Excluded Licenses") of the |
| Agreement (or substantially similar provision in the Agreement signed |
| by Licensee): |
| |
| "3.5 No Excluded Licenses. The licenses granted in Section 2.1 do |
| not include the right to, and Licensee shall not: (a) create |
| Derivative Work(s) of the Licensed Materials in any manner that would |
| cause the Licensed Materials, in whole or in part, to become subject |
| to the terms of an Excluded License; or (b) distribute the Licensed |
| Materials (or Derivative Works thereof) in any manner that would cause |
| the Licensed Materials, or any component thereof, to become subject to |
| the terms of an Excluded License." |
| |
| 2. Licensee agrees that it shall not externally distribute, |
| license or otherwise disclose in any manner the Open Source Portions |
| until the later of (a) the Licensee Products (as defined in the |
| Agreement), that incorporates the Open Source Portions, in whole or in |
| part, is commercialized and made generally available for sale; or (b) |
| NVIDIA makes generally available to the public the Open Source |
| Portions in source code form. |
| |
| 3. Except as noted otherwise in this Exhibit E, the terms and |
| conditions of this Exhibit E will supercede any conflicting terms and |
| conditions between Exhibit E and the Agreement. |
| |
| |
| |
| EXHIBIT F |
| |
| Licensee acknowledges and agrees with this following third party |
| licensing obligations and/or notices in connection with its use of (a) |
| Tegra Linux Driver Package; and (b) Chromium: |
| |
| |
| 1. GNU General Public License 2.0 |
| |
| (For notice purposes only) |
| |
| This product includes copyrighted third-party software licensed |
| under the terms of the GNU General Public License. All third-party |
| software packages are copyright by their respective authors. GNU |
| General Public License is hereby incorporated into the Agreement by |
| this reference. |
| |
| http://www.gnu.org/licenses/old-licenses/gpl-2.0.txt |
| |
| 2. Apache License v2.0 |
| |
| (For notice purposes only) |
| |
| This product includes copyrighted third-party software licensed |
| under the terms of the Apache License. All third-party software |
| packages are copyright by their respective authors. Apache License is |
| hereby incorporated into the Agreement by this reference. |
| |
| http://www.apache.org/licenses/LICENSE-2.0.html |
| |
| 3. BSD License |
| |
| (For notice purposes only) |
| |
| This product includes copyrighted third-party software licensed |
| under the terms of the BSD License. All third-party software packages |
| are copyright by their respective authors. BSD License is incorporated |
| into the Agreement by this reference. |
| |
| http://www.opensource.org/licenses/bsd-license.php |
| |
| 4. MIT License |
| |
| (For notice purposes only) |
| |
| This product includes copyrighted third-party software licensed |
| under the terms of the MIT License. All third-party software packages |
| are copyright by their respective authors. MIT License is hereby |
| incorporated into the Agreement by this reference |
| |
| http://www.opensource.org/licenses/mit-license.php |
| |
| |
| REV. 02.28.2012 |
| |
| |