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Gateworks Corporation SOFTWARE LICENSE AGREEMENT
This is IMPORTANT.
Please read the following Gateworks Corporation Software License Agreement
("Agreement") completely. By downloading the software described in
this agreement, you indicate that you accept the terms contained within.
This is a legal agreement between you, as an authorized representative of
your employer (together "you"), and Gateworks Corporation, Inc. ("Gateworks")
and its Affiliates.
It concerns your rights to use this software and any accompanying written
documentation (the "Licensed Software").
In consideration for Gateworks allowing you to access the Licensed
Software, you are agreeing to be bound by the terms of this Agreement.
If you do not agree to all of the terms of this Agreement, do not download
the Licensed Software. If at any point you no longer agree to all the terms
of this Agreement, stop using the Licensed Software immediately and delete
all copies of the Licensed Software in your possession or control. Any
copies of the Licensed Software that you have already distributed, where
permitted, and that have not been destroyed, will continue to be governed
by this Agreement. Your prior use of the Licensed Software will also
continue to be governed by this Agreement.
Section 1. Definitions
1.1 "Affiliate" means, any corporation, or entity directly or
indirectly controlled by, controlling, or under common
control with Gateworks.
1.2 "Authorized Employees" means your employees or contractors
working at your premises on your behalf under a work for
hire agreement
1.3 "Authorized System" means the hardware system(s) or software
program(s) marketed by you which contains a single board
computer manufactured by Gateworks Corporation and for which
the Licensed Software will be adapted by Licensor pursuant
to this Agreement and with which the Licensed Software will
be integrated.
1.4 "Essential Patent" means a patent to the limited extent that
infringement of such patent cannot be avoided in remaining
compliant with the technology standards implicated by the
usage of any of the Licensed Software, including optional
implementation of such standards, on technical but not
commercial grounds, taking into account normal technical
practice and the state of the art generally available at
the time of standardization.
1.5 "Intellectual Property Rights" means any and all rights under
statute, common law or equity in and under copyrights, trade
secrets, and patents (including utility models), and analogous
rights throughout the world, including any applications for
and the right to apply for, any of the foregoing.
1.6 "Licensed Software" means the software and the associated
documentation.
1.7 "Agreement" means this document and the following Appendices
which are attached hereto and included herein by reference :
Appendix A : Other License Grants and Rights
1.8 "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 combined and/or distributed
with such software be (A) disclosed or distributed in
source code form; (B) licensed for the purpose of making
derivative works; or (C) redistributable at no charge.
Section 2. Licenses
2.1 Separate license grants and rights to Third Party Software,
if different from those granted in this Section 2, are as
identified on Appendix A.
2.2 For Gateworks Licensed Software, Gateworks grants you a
world-wide, personal, non-transferable, non-exclusive,
license, under Gateworks's Intellectual Property Rights:
(a) to use, only as part of, or integrated within,
Authorized Systems and not on a stand alone basis,
the Licensed Software;
(b) to reproduce, only as part of, or integrated within,
Authorized Systems and not on a stand alone basis,
the Licensed Software;
(c) to directly or indirectly manufacture, demonstrate,
copy, distribute, market and sell the Licensed
Software in object code (machine readable) only as
part of, or embedded within, Authorized Systems in
object code form and not on a stand alone basis.
Notwithstanding the foregoing, those files marked
as .h files ("Header files") may be distributed in
source or object code form, but only as part of, or
embedded within Authorized Systems.
(d) to copy, use and distribute as needed, solely in
connection with an Authorized System, the proprietary
information for the purpose of developing, maintaining
and supporting Authorized Systems with which the
Licensed Software is integrated.
2.3 For Gateworks Licensed Software provided to you in source code
form (human readable), Gateworks further grants to you a
worldwide, personal, non-transferable, non-exclusive, license,
under Gateworks's Intellectual Property Rights:
(a) to prepare derivative works, only as part of, or
integrated within, Authorized Systems and not on a
stand alone basis, of the Licensed Software;
(b) to use, demonstrate, copy, distribute, market and
sell derivative works of the Licensed Software in
object code (machine readable) only as part of, or
integrated within, Authorized Systems and not on a
stand alone basis. Notwithstanding the foregoing,
those files marked as .h files ("Header files") may
be distributed in source or object code form, but
only as part of, or embedded within Authorized
Systems.
2.4 You may use subcontractors on your premises to exercise your
rights under Section 2.2 and 2.3 so long as you have an
agreement in place with the subcontractor containing
confidentiality restrictions no less stringent than those
contained in this Agreement. You will remain liable for
your subcontractors' adherence to the terms of this Agreement
and for any and all acts and omissions of such subcontractors
with respect to this Agreement and the Licensed Software.
2.5 The licenses granted above in section 2.3 only extend to
Gateworks intellectual property rights that would be infringed
by the Licensed Software prior to your preparation of any
derivative work.
2.6 You are solely responsible for obtaining any necessary third
party approvals and any licenses for any necessary Essential
Patents for their use in connection with technology that you
incorporate into the your Authorized System (whether as part
of the Licensed Software or not).
2.7 The Licensed Software is licensed to you, not sold.
Title to Licensed Software delivered hereunder remains vested
in Gateworks or Gateworks's licensor and cannot be assigned or
transferred. You are expressly forbidden from selling or
otherwise distributing the Licensed Software, or any portion
thereof, except as expressly permitted herein.
This Agreement does not grant to you any implied rights under
any Gateworks or third party intellectual property.
2.8 You may not translate, reverse engineer, decompile, or
disassemble the Licensed Software except to the extent
applicable law specifically prohibits such restriction.
You must prohibit your sub-licensees from translating,
reverse engineering, decompiling, or disassembling the
Licensed Software except to the extent applicable law
specifically prohibits such restriction.
2.9 You must reproduce any and all of Gateworks's (or its third
party licensor's) copyright notices and other proprietary
legends on copies of Licensed Software.
2.10 If you distribute the Licensed Software to the United States
Government, then the Licensed Software is "restricted
computer software" and is subject to
FAR 52.227-19 (c)(1) and (c)(2).
2.11 You grant to Gateworks a non-exclusive, non-transferable,
irrevocable, perpetual, worldwide, royalty-free,
sub-licensable license under your Intellectual Property
Rights to use without restriction and for any purpose any
suggestion, comment or other feedback related to the
Licensed Software (including, but not limited to, error
corrections and bug fixes).
2.12 You will not take or fail to take any action that could
subject the Licensed Software to an Excluded License.
Section 3. Intellectual Property Rights
3.1 Subject to Gateworks's ownership interest in the underlying
Licensed Software, all intellectual property rights
associated with, and title to, your Authorized System
will be retained by or will vest in you.
3.2 Your modifications to the Licensed Software, and all
intellectual property rights associated with, and title
thereto, will be the property of Gateworks. You agree to
assign all, and hereby do assign all rights, title, and
interest to any such modifications to the Licensed Software
to Gateworks and agree to provide all assistance reasonably
requested by Gateworks to establish, preserve or enforce
such right. Further, you agree to waive all moral rights
relating to your modifications to the Licensed Software,
including, without limitation, any and all rights of
identification of authorship and any and all rights of
approval, restriction, or limitation on use or subsequent
modification. Notwithstanding the foregoing, you will have
the license rights granted in Section 2 hereto to any such
modifications made by you or your licensor's.
Section 4. Patent Covenant not to Sue
4.1 As partial, material consideration for the rights granted to
you under this Agreement, you covenant not to sue or
otherwise assert your Patents against Gateworks, a Gateworks
Affiliate or subsidiary, or a Gateworks licensee of the
Licensed Software for infringement of your Intellectual
Property Rights by the manufacture, use, sale, offer for
sale, importation or other disposition or promotion of the
Licensed Software and/or any redistributed portions thereof.
Section 5. Term and Termination
5.1 This Agreement will remain in effect unless terminated as
provided herein.
5.2 You may terminate this Agreement immediately upon written
notice to Gateworks Corporation at the address provided below.
5.3 Either party may terminate this Agreement if the other
party is in default of any of the terms and conditions
of this Agreement, and termination is effective if the
defaulting party fails to correct such default within 30
days after written notice thereof by the non-defaulting
party to the defaulting party at the address below.
5.4 Notwithstanding the foregoing, Gateworks may terminate this
Agreement immediately upon written notice if you:
(a) breach any of your confidentiality obligations or
the license restrictions under this Agreement;
(b) become bankrupt or insolvent, or file a petition
therefore;
(c) make an assignment for the benefit of its creditors;
(d) enter proceedings for winding up or dissolution;
(e) are dissolved; or
(f) are nationalized or is subject to the expropriation
of all or substantially all of its business or assets.
5.5 Upon termination of this Agreement, all licenses granted
under Section 2 will expire, except that any licenses
extended to end-users pursuant to Sections 2.2 (c),
2.2 (d) and 2.3 (b) which have been granted prior to
such termination will survive.
5.6 After termination of this Agreement by either party and
upon Gateworks's written request, you will, at your discretion,
return to the Gateworks any confidential information including
any and all copies thereof or furnish to Gateworks at the
address below, a statement certifying, with respect to the
Licensed Software delivered hereunder that the original and
all copies, except for archival copies to be used solely for
dispute resolution purposes, in whole or in part, in any
form, of the Licensed Software have been destroyed.
5.7 Notwithstanding the termination of this Agreement for any
reason, the terms of Sections 1, 2.5-2.12, 3, 4, 5.6, 5.7,
7 and 8 will survive.
Section 6. Warranty
6.1 Gateworks does not warrant that the functions contained in
the Licensed Software will meet your requirements or that
the operation of the Licensed Software will be uninterrupted
or error free.
6.2 The warranty recited in this Section 6 extends only to you.
6.3 THIS WARRANTY RECITED IN THIS SECTION 6 IS IN LIEU OF ALL
OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS, AND THE
WARRANTY AGAINST INFRINGEMENT SPECIFIED IN THE UNIFORM
COMMERCIAL CODE. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED
TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
Section 7. Indemnification
7.1 You will defend, indemnify and hold harmless Gateworks from
any and all damages claims, liabilities, and costs (including
reasonable attorney's fees) related to your (including
contractor's and licensee's) use of the Licensed Software
and/or (2) your (including contractor's and licensee's)
violation of the terms and conditions of this Agreement.
You are excused from this obligation to the extent any such
claim arises solely from the Licensed Software as provided by
Gateworks.
Section 8. General Provisions
8.1 Amendments and Waivers. No amendment of any provision of
this Agreement will be valid unless stated in writing and
signed by authorized representatives of each of the parties.
No waiver by any party of any default, misrepresentation or
covenant herein, whether intentional or not, will be deemed
to extend any prior or subsequent default, misrepresentation,
or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent occurrence.
8.2 Choice of Law. This Agreement will be governed by,
construed, and enforced in accordance with the laws of the
State of Arizona.
8.3 Confidential Information. You will treat the Licensed
Software as confidential information and you agree to
retain the Licensed Software in confidence perpetually
with respect to Licensed Software in source code form
(human readable), or for a period of five (5) years from
the date of termination of this Agreement, with respect
to all other parts of the Licensed Software. During this
period you may not disclose any part of the Licensed
Software to others than employees or contractors who have
a need to know of the Licensed Software and who have executed
written agreements obligating them to protect such Licensed
Software. You agree to use the same degree of care, but no
less than a reasonable degree of care, with the Licensed
Software as you do with your own confidential information.
You may disclose Licensed Software to the extent required
by a court or under operation of law or order provided that
you notify Gateworks of such requirement prior to disclosure,
that you only disclose information required, and that the
you allow Gateworks the opportunity to object to such court
or other legal body requiring such disclosure.
8.4 Counterparts. This Agreement may be executed in one or more
original counterparts, all of which together will constitute
one agreement, and facsimile signatures will have the same
effect as original signatures.
8.5 Entire Agreement. This Agreement, including its attachments,
constitutes the entire agreement between the parties
regarding the subject matter hereof, and supersedes all
prior communications, negotiations, understandings, agreements
or representations, either written or oral, by or among the
parties regarding such subject matter.
8.6 Limitation of Liability. EXCLUDING LIABILITY FOR A BREACH OF
SECTION 8.3 (CONFIDENTIALITY), BREACHES OF THE LICENSE GRANTS
IN SECTION 2, OR CLAIMS UNDER SECTION 7, IN NO EVENT WILL
EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR ANY LOSS OF USE, LOSS OF TIME,
INCONVENIENCE, COMMERCIAL LOSS, OR LOST PROFITS, SAVINGS,
OR REVENUES, TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY
LAW. Gateworks'S TOTAL LIABILITY FOR ANY AND ALL COSTS,
DAMAGES, CLAIMS, OR LOSSES WHATSOEVER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR PRODUCT(S) SUPPLIED
UNDER THIS AGREEMENT IS LIMITED TO THE AGGREGATE AMOUNT
PAID BY YOU TO Gateworks IN CONNECTION WITH THE LICENSED
SOFTWARE TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
8.7 Notices. All notices and communications under this Agreement
will be made in writing, and will be effective when received
at the following addresses:
Gateworks: Gateworks Corporation, Inc.
3026 S. Higuera Street
San Luis Obispo, CA 93401
ATTN: Legal department
You: The address provided at registration
will be used.
Either party may change its notice information upon notice
to the other party.
8.8 Relationship of the Parties. The parties are independent
contractors. Nothing in this Agreement will be construed
to create any partnership, joint venture, or similar
relationship. Neither party is authorized to bind the
other to any obligations with third parties.
8.9 Severability. If any provision of this Agreement is held for
any reason to be invalid or unenforceable the remaining
provisions of this Agreement will be unimpaired and, unless
a modification or replacement of the invalid or unenforceable
provision is further held to deprive a party of a material
benefit, in which case the Agreement will immediately
terminate, the invalid or unenforceable provision will be
replaced with a provision that is valid and enforceable and
that comes closest to the parties' intention underlying the
invalid or unenforceable provision.
8.10 Succession and Assignment. This Agreement will be binding
upon and inure to the benefit of the parties and their
permitted successors and assigns. Neither party may assign
this Agreement, or any part of this Agreement, without the
prior written approval of the other party, which approval
will not be unreasonably withheld or delayed.
8.11 Unauthorized Use.
(a) The Licensed Software is not intended or authorized for use
in anti-personnel landmines, and you agree that it will not
be used for this purpose. Upon request from Gateworks, you will
furnish a written certification that you do not use or permit
the use of the Licensed Software in anti-personnel landmines.
(b) The Licensed Software is not intended or authorized for use
in weapons or systems whose primary purpose is the manufacture
of weapons, and you agree that it will not be used for this
purpose. Upon request from Gateworks, you will furnish a written
certification that you do not use or permit the use of the
Licensed Software in weapons or weapons manufacturing systems.
(c) The Licensed Software is not intended or authorized for use
in products surgically implanted into the body, for life
support or for other products in which a product failure
could cause personal injury or death. If you permit the
uses of Licensed Software for these unintended or
unauthorized uses, you will fully indemnify, defend, and
hold harmless Gateworks, its Affiliates, subsidiaries,
officers and directors, employees, and distributors from
all liability related to such use, including attorneys'
fees and costs.
8.12 Export. If, at the time or times of Gateworks's performance
hereunder, an export license is required for Gateworks to
lawfully export Licensed Software, then the issuance of the
appropriate licenses to Gateworks or its subcontractor shall
constitute a condition precedent to Gateworks's obligations
hereunder. You understand and agree that you will not by any
means or method, export, re-export, resell, ship or divert
or cause to be exported, re-exported, resold, shipped, or
diverted, directly or indirectly, the Licensed Software, or
any Gateworks product or technology except as permitted by
and in accordance with the laws and regulations of the
United States and, if different than the United States,
the country from which the export or re-export originates.
8.13 International Sale of Goods. The United Nations Convention
on Contracts for the International Sale of Goods will not
apply to this document.
8.14 Audit. You will maintain accurate and up-to-date records
pertaining to this Agreement and will grant Gateworks or its
authorized agent access to and copies of such records and
information as requested by Gateworks that pertain to your
obligations under this Agreement. Such access will be
granted upon reasonable advance written notice, and be
conducted during normal business hours with minimal impact
to your business operations, and subject to confidentiality
restrictions. You will maintain such records for a period
of at least three (3) years from the date of termination of
this Agreement. You must make prompt adjustment to
compensate for any errors and/or omissions disclosed by such
examination or audit.
APPENDIX A
Other License Grants and Rights:
The Licensed Software may include some or all of the following software which
is not Gateworks proprietary software and the rights granted herein are
limited to those rights provided below:
Open Source Software.
Open source software is not licensed under the terms of
this Agreement, but is instead licensed under the terms of applicable
open source license(s), such as the BSD License, Apache License or
the GNU Lesser General Public License. Your use of the open source
software is subject to the terms of each applicable license.
You must agree to the terms of each such applicable license, or you
should not use the open source software.
Freescale Semiconductor, Inc.
If the Licensed Software includes proprietary software developed by
Freescale Semiconductor ("Freescale"), you must separately obtain
rights beyond evaluation and demonstration in connection with the
Freescale software.
Coding Technologies, acquired by Dolby Laboratories ("CTS")
If the Licensed Software includes software developed by CTS, you must
separately obtain rights beyond evaluation and demonstration in
connection with the CTS software from Dolby Laboratories.
Microsoft
If the Licensed Software includes software owned by the Microsoft
Corporation ("Microsoft"), it is subject to the terms of your
license with Microsoft (the "Microsoft Underlying Software") and
as such, Gateworks grants no license to you, beyond evaluation and
demonstration in connection with Freescale processors, in the
Microsoft Underlying Software. You must separately obtain rights
beyond evaluation and demonstration in connection with the Microsoft
Underlying Software from Microsoft.
Microsoft does not provide support services for the components
provide to you through this Agreement. If you have any questions
or require technical assistance, please contact Gateworks.
Microsoft Corporation is a third party beneficiary to this
Agreement with the right to enforce the terms of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MICROSOFT AND ITS AFFILIATES
DISCLAIM ANY WARRANTIES FOR THE MICROSOFT UNDERLYING SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MICROSOFT NOR ITS
AFFILIATES WILL BE LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE,
FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY
LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, OR LOST
PROFITS, SAVINGS, OR REVENUES, ARISING FROM THE FROM THE USE OF THE
MICROSOFT UNDERLYING SOFTWARE.
SanDisk Corporation Software
If the Licensed Software includes software developed by SanDisk
Corporation ("SanDisk"), you must separately obtain the rights
to reproduce and distribute this software in source code form
from SanDisk. Please follow these easy steps to obtain the license
and software:
1. Contact your local SanDisk sales representative to obtain
the SanDisk License Agreement.
2. Sign the license agreement. Fax the signed agreement to
SanDisk USA marketing department at 408-542-0403.
The license will be valid when fully executed by SanDisk.
3. If you have specific questions, please send an email to
sales@sandisk.com
You may only use the SanDisk Corporation Software on products
compatible with a SanDisk Secure Digital Card. You may not use
the SanDisk Corporation Software on any memory device product.
SanDisk retains all rights to any modifications or derivative
works to the SanDisk Corporation Software that you may create.
Global Locate
If the Licensed Software includes software and hardware developed
by Global Locate, Inc. ("Global Locate"), and acquired by Broadcom
Corporation, you must separately obtain rights beyond evaluation
and demonstration for the Global Locate software from Broadcom
Corporation.
CSR
If the Licensed Software includes software and hardware developed
by Cambridge Silicon Radio, Inc. ("CSR"), you must separately
obtain rights beyond evaluation and demonstration for the CSR
software from CSR.
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