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 email@example.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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