Software License Agreement
IMPORTANT – READ THESE TERMS CAREFULLY BEFORE DOWNLOADING OR USING THIS SOFTWARE. BY DOWNLOADING OR USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, DO NOT DOWNLOAD OR USE THE SOFTWARE.
This License Agreement (“Agreement”) governs the use of the Software provided to you by REAL INTENT, Inc. (“LICENSOR”).
1. LICENSE
Subject to the terms and conditions of this Agreement and LICENSEE’s payment of all applicable Fees to LICENSOR, LICENSOR hereby grants to LICENSEE and LICENSEE accepts an ongoing or time-based (subject to Section 9), non-exclusive, non-transferable license to use the supported SOFTWARE in object code form, with which this Agreement is provided along with its related documentation (collectively, “PRODUCT”). Software is to be used solely on computers owned or controlled by LICENSEE and located at LICENSEE’s facilities within fifty miles of the license server, unless an exception is specifically designated in writing by LICENSOR or LICENSEE has purchased optional Wide Area Networking (WAN) capability. Software is to be used for the limited purpose of internal verification of designs developed by LICENSEE. LICENSEE may make one copy the SOFTWARE for backup purposes only, provided that LICENSEE maintain on such copy all proprietary rights notices of the SOFTWARE. LICENSEE agrees not to alter or remove copyright and other proprietary notices of LICENSOR on the PRODUCT.
2. CONDITIONS ON USE.
The PRODUCT is for the LICENSEE’s own personal use. Except as otherwise expressly provided in this Agreement, LICENSEE agrees that it will have no right and will not, nor will it assist others to: (i) make unauthorized copies of all or any portion of the PRODUCT; (ii) sell, sublicense, distribute, rent or lease the PRODUCT without the prior written approval from LICENSOR; (iii) use the PRODUCT on a service bureau, time sharing basis or other remote access system whereby third parties other than LICENSEE can use or benefit from the use of the PRODUCT; (iv) disassemble, reverse engineer, modify, translate, alter, decompile or otherwise attempt to discern the source code of all or any portion of the PRODUCT.
3. OWNERSHIP.
Subject to the limited license granted to LICENSEE under Section 1 of this Agreement, title and full ownership rights to the PRODUCT and all intellectual property rights embodied therein remains the sole property of LICENSOR, and LICENSEE acquires no rights in the PRODUCT other than as expressly granted in this Agreement.
4. CONFIDENTIAL INFORMATION.
LICENSEE acknowledges that the PRODUCT contains valuable confidential and confidential information of LICENSOR (“Confidential Information”). LICENSEE agrees to keep as confidential and to use only as permitted under this Agreement such Confidential Information. LICENSEE agrees to treat as confidential and safeguard the Confidential Information using the same degree of care as it uses with respect to its own information of like importance, but in any event with no less than reasonable care, and may only disclose such Confidential Information to its employees and contractors having a need for such access and who are bound by confidentiality agreements with terms at least as restrictive as those contained in this Section 4.
5. LIMITED WARRANTIES.
Subject to the terms of this Agreement, if the SOFTWARE is provided to LICENSEE on a tangible media, LICENSOR warrants that for a period of thirty (30) days from the date of delivery of the PRODUCT to LICENSEE, the magnetic media on which the PRODUCT is provided to LICENSEE will be free from defects in materials and workmanship. LICENSEE shall notify LICENSOR within such thirty (30) day period of any breach of the foregoing warranty and provide LICENSOR with a reasonable opportunity to correct or replace the media. As LICENSOR’s sole liability and LICENSEE’s sole remedy for breach of the foregoing warranty, LICENSOR shall at its option repair or replace the magnetic media on which the PRODUCT is provided to LICENSEE. This limited warranty shall be void if LICENSOR determines that the PRODUCT has been used other than in accordance with the documentation, abused, modified, altered or otherwise subjected to damage from accident.
6. DISCLAIMER OF WARRANTY.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5 ABOVE, THE PRODUCT IS PROVIDED BY LICENSOR TO LICENSEE “AS IS,” AND LICENSOR AND ITS SUPPLIERS, IF ANY, MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE PRODUCT AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW. LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. LICENSEE WILL BEAR ALL RISKS RELATING TO LICENSEE’S DESIGNS AND PRODUCTS DEVELOPED OR USED IN CONNECTION WITH THE PRODUCT.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL LICENSOR BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR LICENSEE’S USE OF OR INABILITY TO USE THE PRODUCT EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’s entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether arising out of contract, negligence, strict liability, or otherwise shall in no event exceed an amount equal to the Fees paid by LICENSEE for the PRODUCT.
8. INDEMNITY.
(a) Subject to the terms of this Section 8, LICENSOR will hold harmless, indemnify and defend LICENSEE, at LICENSOR’s expense, from and against any action brought, and will pay any settlements or judgments finally awarded in favor of a third party, to the extent based upon any claim that the PRODUCT infringes any valid U.S. patent issued as of the Effective Date, copyright or trade secret, provided that LICENSEE: (a) promptly notifies LICENSOR in writing of any such claim; (b) gives LICENSOR full authority and control of the settlement and defense of the claim; and (c) fully cooperates with LICENSOR in the defense of such claims, including providing adequate assistance and information. The indemnity provided hereunder shall not apply to amounts paid in settlement of any claim if such settlement is made without LICENSOR’s prior written consent.
(b) LICENSOR will have no obligation to LICENSEE for any claim or action arising out of or relating to: (a) any modification to the PRODUCT by anyone other than LICENSOR; (b) modifications made by LICENSOR at LICENSEE’s request in compliance with LICENSEE’s design, specifications or instructions; (c) use of the PRODUCT other than as specified in this Agreement or in the applicable documentation; or (d) use of the PRODUCT in combination with third-party PRODUCT, hardware or data.
(c) If an infringement claim arises, or in LICENSOR’s opinion is likely to arise, LICENSOR may at its own expense obtain for LICENSEE the right to continue using the PRODUCT, modify the PRODUCT to make it non-infringing, or substitute other PRODUCT of the same capability and functionality. If none of these options are reasonably available to LICENSOR, LICENSOR may terminate the license for the infringing PRODUCT and refund to LICENSEE the applicable fees paid for the infringing PRODUCT, less a reasonable charge for LICENSEE’s use of the PRODUCT prior to such termination. THIS SECTION 8 STATES THE ENTIRE OBLIGATION OF LICENSOR AND THE EXCLUSIVE REMEDIES OF LICENSEE WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BY LICENSOR.
9. TERMINATION.
LICENSOR may terminate this AGREEMENT upon 30 day written notice to LICENSEE, if LICENSEE breaches any of the terms and conditions of the AGREEMENT and fails to remedy such breach within such thirty day period. LICENSEE may terminate this Agreement upon thirty days written notice to LICENSOR before the end of the then current maintenance period. Upon termination, LICENSEE shall discontinue use of the PRODUCT and return within 10 days of termination all copies to LICENSOR at LICENSEE’s expense, or at LICENSOR’s option, destroy the PRODUCT and certify that such PRODUCT has been destroyed. LICENSEE’s failure to comply with the obligations of this Section will constitute unauthorized use of the PRODUCT, entitling LICENSOR to equitable relief and other legal and equitable remedies. The following sections shall survive any termination of this Agreement: Sections 3, 4, 7, 8, 9 and 12.
10. FEES AND PAYMENT.
The license grant pursuant to Section 1 and maintenance of the SOFTWARE pursuant to Section 11 are subject to payment of License and Maintenance Fees (“Fees”). More specific terms related to Payment and Fees are set forth in the invoice and on the back of the invoice sent by LICENSOR to LICENSEE. Upon receipt of the Fees by LICENSOR, LICENSOR will, within a reasonable time, deliver to LICENSEE the license key via phone, email, fax or other medium to allow LICENSEE to use the SOFTWARE.
11. MAINTENANCE.
License to the SOFTWARE pursuant to Section 1 is subject to the SOFTWARE being under current maintenance by LICENSOR. Maintenance of the SOFTWARE consists of (i) periodic delivery of new versions of the SOFTWARE (“Updates”) when LICENSOR makes such Updates commercially available to its licensees and (ii) LICENSOR’s commercially reasonable efforts to correct any failure of the SOFTWARE to conform in any material respect with its published specifications (“Error”) reported by LICENSEE to LICENSOR, with work arounds. LICENSOR shall have no obligations to maintain: (a) altered, damaged or modified SOFTWARE or any portion of the SOFTWARE incorporated with or into other software; (ii) SOFTWARE for which Maintenance Fees have not been paid to LICENSOR; (iii) SOFTWARE problems caused by LICENSEE’s negligence, abuse or misapplication, use of the SOFTWARE other than as specified in documentation, if any, accidents, acts of nature or other causes beyond the control of LICENSOR. This Section 11 shall be subject to the limitations set forth in Section 6 and 7. LICENSOR reserves the right to modify Maintenance Fees upon ninety (90) day notice to LICENSEE prior to the end of the then current maintenance period.
12. GENERAL.
(a) This Agreement, together with any applicable invoice, and Terms and Conditions of Sale, is the entire agreement between LICENSEE and LICENSOR and supersedes any prior or contemporaneous agreements, whether written or oral, between the parties, with respect to the subject matter of this Agreement. This Agreement may not be modified except in writing signed by both parties.
(b) This AGREEMENT shall be governed by the laws of the State of California, without regard to its conflicts of law principles. Exclusive jurisdiction and venue for any dispute arising out of this Agreement shall be in the federal and state courts serving Santa Clara County, California.
(c) If a court of competent jurisdiction holds any provision of this Agreement, or its application, invalid or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect.
(d) LICENSEE may not assign, transfer, delegate or sub-license, without the prior written consent of LICENSOR, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, except in connection with a merger or sale of all or substantially all of LICENSEE’s assets other than with or to a direct competitor of LICENSOR, provided that (1) LICENSEE gives notice to LICENSOR of such assignment and (2) the assignee agrees to be bound by the terms of this Agreement. Any attempted assignment, transfer, delegation or sublicense without the required consent shall be void. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
(e) LICENSOR shall have the right to collect from LICENSEE its reasonable expenses incurred in enforcing this Agreement, including attorney’s fees.
(f) No delay or failure by LICENSOR to act in the event of a breach or default hereunder shall be construed as a waiver of that or any succeeding breach or a waiver of the provisions itself.
(g) Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be deemed effective when hand delivered or sent by registered mail, return receipt requested or by confirmed facsimile transmission to the signatory of each party to this Agreement at the last provided address or the address set forth on the applicable invoice or other address as either party may specify to the other party in the future in conformity with this section.
(h) If LICENSEE is a United States government agency, the PRODUCT is classified as “commercial computer software” and the related documentation is classified as “commercial computer software documentation” or “commercial items” pursuant to DFARS or FAR Section 12.212, as applicable. Use, reproduction, display or disclosure of the SOFTWARE by the United States Government is subject to the restrictions of this Agreement.
(i) Notwithstanding any other provision of this Agreement, LICENSEE shall not export or re-export the PRODUCT to any country to which the United States government forbids export, or at the time of export, requires an export license or approval, without first obtaining such license or approval.