The following license supersedes the Device Driver Software License Agreement referenced in the headers of some or all files included in this release.
PMC Sierra, Inc. ("PMC") has developed certain materials in either source or binary formats which it is willing to license for use in designing, and supporting the development of and software running on, integrated circuits which are authorized PMC products. In certain instances, use of these materials may require a license from a third party as set forth in a separate notice.
IMPORTANT - READ CAREFULY: This Software License Agreement (the "Agreement") is a legal agreement between you (either as an individual or as an authorized representative of an entity, hereafter "Licensee") and PMC, pursuant to which PMC is willing to license you the materials accompanying this Agreement or made available for download (the "Licensed Materials" as defined below) on the terms and conditions set forth herein. By clicking on the "accept" button, downloading, installing or otherwise using the Licensed Materials, you agree to be bound by the terms of this Agreement and if doing so on behalf of an entity, you represent that you are authorized to bind the entity to the terms and conditions of this Agreement. If you do not agree to be bound by the terms of this Agreement, do not download, install or use the Licensed Materials.
1. Definitions. For purposes of this Agreement, the following definitions shall apply:
1.1 "Licensed Materials" shall include all materials subject to this Agreement downloaded by or otherwise supplied to Licensee (including any updates or upgrades thereof made available by PMC in its sole discretion).
1.2 "Confidential Information" shall mean and include the Licensed Materials in Source Format that are identified as confidential and all Licensed Materials in Binary Format unless derivable from non-confidential Licensed Materials in Source Format; any test results, error data, or other reports, made by Licensee in connection with the license rights granted under this Agreement; and any notes, extracts, analyses, or materials prepared by Licensee which are copies of the Confidential Information or from which the substance of the Confidential Information can be inferred or otherwise understood.
1.3 "Licensee Modifications" shall mean all or any modifications to the Licensed Materials made by or on behalf of Licensee. For purposes of clarification, however, PMC acknowledges and agrees that Licensee is under no obligation to deliver Licensee Modifications; rather, this definition is intended solely to provide a freedom to use such modifications when created independently by PMC or any sublicensee thereof.
1.4 "Authorized Product" means an integrated circuit that is manufactured by or for PMC and any hardware supplied by PMC that incorporates an integrated circuit manufactured by or for PMC.
1.5 "PMC Modifications" shall mean modifications to Licensed Materials made by PMC or any third party licensed by PMC, wherein such third party grants back to PMC a license under such modifications with the unrestricted rights to sublicense and grant further sublicenses. For purposes of clarification, however, Licensee acknowledges and agrees that PMC is under no obligation to deliver PMC Modifications; rather, this definition is intended solely to provide a freedom to use such modifications when created independently by PMC or any sublicensee thereof.
1.6 "Source Format" shall mean all or any portion of human readable code.
1.7 "Binary Format" shall mean all or any portion of machine-readable and executable code.
1.8 "Derivative Works" shall mean modifications and enhancements of Licensed Materials in Source Format or Binary Format made by Licensee or by the inclusion of Binary Format code pursuant to Section 2 which, if prepared without consent from PMC, would be a copyright infringement.
2. License Grants.
2.1 Subject to Licensee's full compliance with the terms and conditions of this Agreement, and payment of any fees owed to PMC (if applicable, which payment shall be non-refundable), PMC grants to Licensee a non-exclusive, worldwide, non-transferable, royalty-free, fully-paid up limited right and license to:(i) use, copy, modify, reproduce and have reproduced, create Derivative Works of, and sell or otherwise distribute the non-confidential documentation (if any) and Derivative Works thereof only in conjunction with distribution or sale of Authorized Products, or software supporting development of or running on Authorized Products, provided that all copies and Derivative Works thereof contain all copyright and other proprietary notices contained in the original documentation and are complete and accurate; (ii) use, modify and create Derivative Works of Licensed Materials in Source Format and any PMC Modifications, and; (iii) use Licensed Materials in Binary Format, solely for the purpose of incorporating such Licensed Materials or Derivative Works thereof in Authorized Products or developing software supporting development of or running on Authorized Products; provided that: (a) Licensee has first obtained a license from any third party about which PMC provided Licensee notice prior to its first use of the Licensed Materials; (b) any intellectual property rights arising from or relating to any modification or Derivative Works of the Licensed Materials or any PMC Modifications created by or for Licensee (i.e., Licensee Modifications) shall be licensed back to PMC on a royalty-free basis, together with the unrestricted right by PMC to sublicense such rights and grant further sublicenses, at its discretion, as set forth in Section 2.3 below; and (c) all copies and Derivative Works thereof contain all copyright and other proprietary notices contained in the original Licensed Materials and are complete and accurate;
2.2 The technology you are installing, downloading, or have acquired with this Agreement, including any updates, upgrades, modifications, revisions, and documentation, are copyrighted materials, and may contain trade secrets of PMC or its licensors, who maintain exclusive right, title and interest in and to all Licensed Materials and PMC Modifications, and retain all rights not expressly granted by this Agreement. No title or ownership in any copyright, trademark, trade secret or other intellectual property right is transferred by PMC to Licensee or any other party under this Agreement. Licensee shall not alter or remove any trademark, copyright or other proprietary rights notice in the Licensed Materials. Except as set forth in this Section 2, Licensee shall not use the Licensed Materials for any other purpose. Licensee may not modify or reverse engineer any Licensed Materials not delivered in Source Format (the "binary materials"), nor may Licensee decompile, disassemble, or otherwise reduce the binary materials or any component thereof to human readable or non-binary form.
2.3 In partial consideration for the rights and licenses granted to Licensee under this Section 2, and to enable the "freedom to use" model of this Agreement, Licensee agrees to grant and does hereby grant to PMC (but with no obligation to deliver as set forth in Section 1.3) a perpetual, irrevocable, non-exclusive worldwide, royalty-free, fully-paid up right and license (including the right to sublicense and grant further sublicensing rights) under Licensee's intellectual property rights in any Licensee Modifications to the extent that PMC may use, modify and create Derivative Works from such Licensee Modifications in conjunction with making, using, offering for sale and selling or otherwise distributing PMC products (which may include such Licensee Modifications and Derivative Works thereof), and sublicensing the rights granted in this Section 2.3 in order to provide a freedom to use such modifications when created independently by PMC or any sublicensee thereof.
2.4 No rights to PMC trademarks, service marks, logo or trade name are granted to Licensee pursuant to this Agreement.
3. No Support or Maintenance Obligation.
This Agreement does not entitle Licensee to receive any support, training or maintenance of any kind from PMC. Such services, if available, must be obtained through a separate agreement.
4. Term, Termination and Survival.
4.1 This Agreement is effective upon Licensee's download, access and/or use of the Licensed Materials, and shall continue for as long as Licensee is authorized to design, develop or distribute Authorized Products or software supporting development of or running on Authorized Products, unless earlier terminated as provided herein. Licensee may terminate this Agreement at any time. Either party may terminate this Agreement immediately should the Licensed Materials become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. This Agreement will terminate automatically without notice from PMC if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee shall destroy all copies of Licensed Materials and all non-surviving rights granted hereunder shall cease.
4.2 The rights and obligations under this Agreement which by their nature should survive termination, including but not limited to the license rights granted to PMC by Licensee pursuant to Section 2.3 above, and the terms and conditions of Sections 4 - 8, will remain in effect after expiration or termination of this Agreement. Except as otherwise set forth herein and provided no claim or action has been brought against PMC and/or Licensee for infringement of third party rights, any Authorized Products incorporating Licensed Materials or any Derivative Works thereof or any software supporting development of or running on Authorized Products may continue to be made, sold and distributed in accordance with Licensee's rights under its agreements with respect to the Authorized Products.
5. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED MATERIALS AND THE PMC MODIFICATIONS ARE PROVIDED TO LICENSEE "AS IS." PMC MAKES NO WARRANTIES AND, TO THE FULL EXTENT ALLOWED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS REGARDING THE LICENSED MATERIALS AND PMC MODIFICATIONS. PMC DOES NOT WARRANT THAT OPERATION OF THE LICENSED MATERIALS WILL BE ERROR-FREE, AND THAT USE THEREOF WILL BE UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED.
6. Limitation of Liability and Remedies.
Licensee acknowledges the Licensed Materials and any PMC Modifications are provided to Licensee only for the purpose set forth in Section 2 herein. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PMC OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES TO SYSTEMS, DATA OR SOFTWARE, WHETHER SUCH DAMAGES ARISE UNDER A TORT (INCLUDING NEGLIGENCE OR OTHERWISE), CONTRACT OR OTHER CLAIM, EVEN IF PMC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL PMC BE LIABLE FOR ANY DAMAGES RELATING TO OR RESULTING FROM THE USE OF LICENSED MATERIALS OR PMC MODIFICATIONS IN PRODUCTS USED FOR AVIATION, MEDICAL, NUCLEAR OR ULTRA HAZARDOUS PURPOSES OR FOR ANY DAMAGES OWED TO THIRD PARTIES RELATING TO TECHNOLOGY NOT PROVIDED BY PMC. IN NO EVENT WILL PMC'S LIABILITY TO LICENSEE UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNT PAID BY LICENSEE FOR THE LICENSED MATERIALS OR US $100. THIS LIMITATION ON LIABILITY SHALL SURVIVE EVEN IF THE LIMITED REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. Licensee acknowledges that, in providing Licensee with the Licensed Materials, PMC has relied upon Licensee's agreement to be bound by the terms of this Agreement, including the obligation to obtain any necessary licenses from third parties. Further, Licensee agrees to indemnify and hold PMC harmless from any and all actual or threatened liabilities, claims or expenses caused by Licensee's use of any Licensed Materials or PMC Modifications and any Licensee Modifications made by or for Licensee.
Licensee agrees (i) to use the Confidential Information only as necessary to exercise its rights or fulfill its obligations under this Agreement; (ii) to implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of Confidential Information; and (iii) not to disclose Confidential Information to employees not having a need to know or to any third party (except that Licensee may, in appropriate circumstances and subject to a nondisclosure agreement with terms and conditions at least as protective as the terms of this Section 7, disclose Confidential Information to Licensee's contractors, solely as permitted under Section 2 of this Agreement). Without limiting the foregoing, Licensee shall at all times protect the Confidential Information with at least the same standard of care as it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.
8. General Terms and Conditions.
8.1 Export. Licensee agrees that it will comply with all applicable US and international laws relating to export, or transfer for the purpose of reexport, as well as end-user, end end-use and destination restrictions imposed by the US or any other governments.
8.2 Governing Law and Forum Selection. This Agreement shall be governed by California law excluding its choice of law rules. With the exception of PMC's rights to enforce its intellectual property rights and the confidentiality obligations under this Agreement, all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California, and the parties consent to the personal and exclusive jurisdiction and venue of these courts. Licensee waives all defenses of lack of personal jurisdiction and forum non-conveniens. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees. The parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement.
8.3 U.S. Government End Users. Licensee acknowledges that all software and software related items licensed by PMC to Licensee pursuant to this Agreement are "Commercial Computer Software" or "Commercial Computer Software Documentation" as defined in FAR 12.212 for civilian agencies and DFARS 227.7202 for military agencies, and that in the event that Licensee is permitted under this Agreement to provide such items to the U.S. government, such item shall be provided under terms at least as restrictive as the terms of this Agreement.
8.4 Waiver or Delay. Any express waiver or the failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement.
8.5 Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
8.6 No Assignment. Licensee may not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without PMC's prior written consent, and any attempt to do so will be null and void.
8.7 Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning its subject matter, and may not be modified except by a writing duly executed by both parties.