CORE EVALUATION LICENSE AGREEMENT
CAREFULLY READ THIS CORE EVALUATION LICENSE AGREEMENT (“AGREEMENT”). BY CLICKING THE “ACCEPT” OR “AGREE” BUTTON, OR OTHERWISE ACCESSING, DOWNLOADING, INSTALLING OR USING THE LICENSED MATERIALS (DEFINED BELOW), YOU AGREE ON BEHALF OF LICENSEE TO BE BOUND BY THIS AGREEMENT. “LICENSEE” MEANS THE CORPORATION OR OTHER LEGAL ENTITY (IDENTIFIED ABOVE) TO WHICH XILINX, INC., A DELAWARE CORPORATION WITH AN OFFICE AT 2100 ALL PROGRAMMABLE DRIVE, SAN JOSE, CA 95124 (“XILINX”) HAS ISSUED THE LICENSE DESCRIBED HEREIN. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE “ACCEPT” OR “AGREE” BUTTON, AND DO NOT ACCESS, DOWNLOAD, INSTALL OR USE THE LICENSED MATERIALS, AND IF LICENSEE HAS ALREADY OBTAINED THE LICENSED MATERIALS FROM AN AUTHORIZED SOURCE, PROMPTLY RETURN THE LICENSED MATERIALS FOR A REFUND. AS USED HEREIN, THE “EFFECTIVE DATE” MEANS THE DATE ON WHICH LICENSEE CLICKS THE “ACCEPT” OR “AGREE” BUTTON (IDENTIFIED ABOVE) OR OTHERWISE ACCESSES, DOWNLOADS, INSTALLS OR USES THE LICENSED MATERIALS, WHICHEVER OCCURS FIRST.
The parties agree as follows:
1. Product Exhibit; Order of Precedence. This Agreement incorporates Exhibit A below (the “Product Exhibit”). The Product Exhibit shall identify any terms or conditions that are applicable to the Licensed Materials described therein that are additional to or different from Sections 1 through 10 of this Core Evaluation License Agreement, and in such case the terms and conditions of the Product Exhibit shall supersede any conflicting provisions of this Core Evaluation License Agreement solely for such Licensed Materials. The terms or conditions of any purchase order or other document issued by Licensee in connection with this Agreement shall be deemed invalid and have no force or effect to add to or modify this Agreement.
“Affiliate” means an entity which controls, is controlled by or is under common control with a party hereto; where “control” means that the controlling party directly or indirectly has the beneficial ownership of more than fifty percent of the controlled entity’s shares or ownership interest giving the power to direct or cause the direction of the general management of the controlled entity. An entity shall be an Affiliate only during the time when such control exists.
“Authorized Site” means a single geographic location in which Licensee conducts business, with a radius of no more than five (5) miles, which location is identified above.
“Licensed Materials” means the Xilinx design files (also referred to as a “core”) and documentation, as further described in the Product Exhibit.
“Xilinx Device” means FPGA, PLD, SoC, configurable memory or other semiconductor devices that Xilinx designs and sells directly or through one or more of Xilinx’s authorized distributors.
3. License Grant. Subject to the terms and conditions of this Agreement, Xilinx hereby grants Licensee a nonexclusive, nontransferable, limited license, only during the time allowed under Section 9 below, to internally test and evaluate the Licensed Materials for the sole purpose of determining their potential use in creating designs that are programmed into a Xilinx Device.
Licensee may allow any of its Affiliates to exercise the rights granted to Licensee above; provided however, that Licensee shall be liable for any failure of Affiliates to the abide by the terms and conditions of this Agreement as if such failure was the failure of Licensee.
4.1 Licensee shall not use the Licensed Materials for any purpose other than in compliance with Section 3 (License Grant), or allow use by any person outside the Authorized Site.
4.2 Licensee shall not reproduce the Licensed Materials other than to the extent necessary for its authorized testing and evaluation of the Licensed Materials (per Section 3 above), provided always that Licensee will at all times and in each instance, reproduce all copyright notices and proprietary legends on each copy in the same manner as such notices and legends appeared on the original.
4.3 Licensee shall not distribute or provide Licensed Materials to a third party.
4.4 Licensee shall not publish or disclose the results of any benchmarking of the Licensed Materials, or use such results for its own competing development activities.
4.5 Licensee shall not decrypt, decompile, reverse-engineer, disassemble, or otherwise reduce to a human-perceivable form, the Licensed Materials.
4.6 Licensee shall not modify or alter the Licensed Materials.
4.7 Licensee shall not hypothecate, rent, lease, loan, lend, time-share, sublicense or otherwise transfer the Licensed Materials.
5. Ownership. Licensee acknowledges and agrees that all intellectual property and industrial rights in and to the Licensed Materials and all copies thereof are and will remain the sole property of Xilinx, or its licensors (if any). Nothing contained in this Agreement will be construed as conferring by implication, estoppel or otherwise upon Licensee any license or other right except the licenses and rights expressly granted to Licensee in Section 3 (License Grant). Licensee understands that portions of the Licensed Materials and related documentation may have been licensed to Xilinx from third parties and that such third parties are intended third-party beneficiaries of the provisions of this Agreement. The Licensed Materials are protected by laws and international treaty provisions covering intellectual property and industrial rights.
6.1 Duties. Licensee shall (a) maintain the confidentiality of the Licensed Materials as the proprietary trade secrets of Xilinx; and (b) not make the Licensed Materials available in any form to any person other than to its employees who are working at the Authorized Site, who have a genuine “need to know” for purposes authorized by this Agreement, and who are bound by obligations of confidentiality no less protective of Xilinx (and its licensors, if any) than those contained herein. Licensee represents to Xilinx that it maintains a system of confidentiality consistent with commonly accepted practices to protect its own confidential business information, including written agreements with employees, and that the Licensed Materials will be protected by such a system to the same extent, but in no event with less than reasonable care. Licensee agrees that a breach of this Agreement may result in irreparable and continuing damage to Xilinx for which there may be no adequate remedy at law, and Xilinx shall be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief (including monetary damages) as may be proper.
6.2 Exceptions. The obligations of confidentiality under this Agreement shall not apply to information that: (a) is already known to Licensee at the time of disclosure without obligation of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of Licensee; (c) is rightfully received by Licensee from a third party without obligation of confidentiality; (d) is approved for release by written authorization of Xilinx; or (e) was developed by Licensee independently and without the use or benefit of the Licensed Materials.
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, AND XILINX DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XILINX MAKES NO WARRANTY OR REPRESENTATION THAT THE FUNCTIONS CONTAINED IN THE LICENSED MATERIALS WILL MEET LICENSEE’S REQUIREMENTS, THAT THE LICENSED MATERIALS WILL OPERATE PROPERLY IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS, OR THAT THE OPERATION OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS OR DEFECTS IN THE LICENSED MATERIALS ARE CAPABLE OF BEING CORRECTED.
7.2 LICENSEE ACKNOWLEDGES THAT USE OF THE LICENSED MATERIALS IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS MAY REQUIRE LICENSES FROM THIRD PARTIES AND LICENSEE ACCEPTS SOLE RESPONSIBILITY FOR OBTAINING SUCH LICENSES.
7.3 THE LICENSED MATERIALS ARE NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR FOR USE IN ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS APPLICATIONS RELATED TO LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, DEPLOYMENT OF AIRBAGS, CONTROL OF VEHICLE OR AIRCRAFT (UNLESS THERE IS A FAIL-SAFE OR REDUNDANCY FEATURE WHICH DOES NOT INCLUDE USE OF SOFTWARE IN THE XILINX DEVICE TO IMPLEMENT THE REDUNDANCY AND A WARNING SIGNAL UPON FAILURE TO THE OPERATOR), OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, “CRITICAL APPLICATIONS”). LICENSEE AGREES, PRIOR TO USING OR DISTRIBUTING ANY SYSTEMS THAT INCORPORATE THE LICENSED MATERIALS, TO THOROUGHLY TEST THE SAME FOR SAFETY PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF THE LICENSED MATERIALS IN CRITICAL APPLICATIONS.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) IN NO EVENT SHALL XILINX OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, GOODWILL, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE LICENSED MATERIALS, IN WHOLE OR IN PART, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY; (2) IN NO EVENT SHALL THE ENTIRE LIABILITY OF XILINX OR ITS LICENSORS ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNT OF LICENSE FEES RECEIVED BY XILINX FROM LICENSEE FOR THE APPLICABLE LICENSED MATERIALS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; (3) THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY REGARDLESS OF WHETHER SUCH LOSS WAS REASONABLY FORESEEABLE OR IF XILINX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (4) THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY IN ANY WAY FOR ANY MATTER THAT CANNOT, AS A MATTER OF APPLICABLE LAW, BE LIMITED OR EXCLUDED. THE PARTIES AGREE THAT THIS SECTION 8 (LIMITATION OF LIABILITY) REPRESENTS AN ALLOCATION OF RISK WHICH THE PARTIES CONSIDER REASONABLE.
9. Term and Termination.
9.1 Term. This Agreement will commence upon the Effective Date and will remain effective for a period of one hundred twenty (120) days after the Effective Date, unless terminated earlier in accordance with this Section 9.
9.2 Termination by Licensee. Licensee may terminate this Agreement at any time for any or no reason by destroying the Licensed Materials and all copies and derivative works, and providing notice to Xilinx of same.
9.3 Termination by Xilinx. Xilinx may terminate this Agreement for material breach by Licensee, provided that Xilinx has given written notice to Licensee of such breach and Licensee fails to cure such breach within thirty (30) days thereof; provided, however, in the event of a breach of confidentiality under Section 6 whereby unauthorized disclosure and/or dissemination by electronic or other means is likely to cause undue harm to Xilinx, then Xilinx may, at its discretion, immediately terminate this Agreement and seek other appropriate equitable and legal remedies as deemed necessary to protect its interests hereunder.
9.4 Effects of Termination. Upon termination of this Agreement the licenses and rights granted by Xilinx hereunder will cease, and Licensee shall destroy the Licensed Materials, including all copies and derivative works, and all related documentation and certify such destruction in writing to Xilinx. Each party’s rights and obligations under the following provisions of this Agreement shall indefinitely survive the termination of this Agreement: Sections 5 (Ownership); 6 (Confidentiality); 7 (Disclaimers); 8 (Limitation of Liability), 9.4 (Effects of Termination); and 10 (General).
10.1 Governmental Use. The Licensed Materials are comprised of commercial computer software developed exclusively at the expense of Xilinx. Accordingly, pursuant to the U.S. government’s Federal Acquisition Regulations (FAR) Section 12.212 and Defense FAR Supplement (DFARS) Section 227.7202, use, duplication and disclosure of the Licensed Materials by or for the U.S. government is subject to the restrictions set forth in this Agreement. Manufacturer is Xilinx, Inc., 2100 All Programmable Drive, San Jose, CA 95124.
10.2 Export Compliance. Licensee shall adhere to all applicable import and export laws and regulations of Licensee’s country and of the United States, without limitation. This Agreement may involve items and information that are subject to the U.S. government’s International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR). The importer/exporter of record shall not export, reexport, resell, transfer, or disclose, directly or indirectly, any products or technical data, to any proscribed person, entity, or country, or foreign persons thereof, unless properly authorized by the U.S. government and/or any other applicable or relevant government or regulatory body.
10.3 Governing Law. (a) Where the Licensee is located in North America, South America or any other location not covered by (b) or (c) below: This Agreement, and its performance shall be interpreted by, construed according to, and governed by, the laws of the State of California excluding conflict of laws rules and principles and the competent courts located in Santa Clara County, California shall have jurisdiction; (b) Where the Licensee is located in Europe, the Middle East or Africa (EMEA) region: This Agreement, and its performance shall be interpreted by, construed according to, and governed by, the laws of Ireland excluding conflict of laws rules and principles and the competent Irish courts shall have jurisdiction; (c) Where the Licensee is located in the Asia Pacific region, Australia or New Zealand: This Agreement, and its performance shall be interpreted by, construed according to, and governed by, the laws of Singapore excluding conflicts of laws rules and principles and the competent Singapore courts shall have jurisdiction. The parties specifically exclude from application to this Agreement the United Nations Convention on contracts for the International Sale of Goods. Where the Licensee is an individual, he or she shall be deemed to be located in his or her usual place of residence. Where the Licensee is a corporation or any other legal entity, it shall be deemed to be located in the jurisdiction of its incorporation or other formation.
10.4 Assignment. Licensee shall not assign this Agreement or transfer any of the rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Xilinx. Any merger, acquisition, reorganization, change of control, or the like, involving Licensee shall be deemed an assignment in violation of the foregoing. Subject to the foregoing, this Agreement will be for the benefit of Xilinx and its successors and assigns, and will be binding on Licensee’s permitted assignees.
10.5 Allocation of Risk. Licensee acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement.
10.6 Waiver; Amendment. No waiver, express or implied, by either party of any right or remedy for any breach by the other party of any provision of this Agreement will be deemed or construed to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself or of any other breach or provision. No waiver of or modification or amendment to this Agreement will be effective unless reduced to writing and executed by authorized representatives of the parties.
10.7 Severability. If any provision of this Agreement is found unenforceable, illegal, void or invalid in whole or in part, then it shall to that extent be deemed not to form part of this Agreement and the remainder of the Agreement will remain in full force and effect.
10.8 Notices. Any notices required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (i) by personal delivery, when delivered personally; (ii) by overnight courier, upon written verification of receipt; (iii) by facsimile transmission, upon acknowledgment of receipt of electronic transmission, provided that notice is also provided by one of the other methods herein within five (5) days thereafter; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above, or to such other address as either party may specify in writing. Notices to Xilinx shall be addressed to the attention of: Xilinx, Inc., Attn: General Counsel, Legal Department, 2100 All Programmable Drive, San Jose, CA 95124.
10.9 Entire Agreement. This Agreement represents and constitutes the entire agreement between the parties with respect to the Licensed Materials, and supersedes all prior or contemporaneous discussions, representations, arrangements, understandings or agreements, written or oral, regarding the subject matter hereof. No additional terms or modifications proposed by Licensee shall be binding on Xilinx unless expressly agreed to in writing and signed by Xilinx.
10.10 Interpretation. By clicking to “accept” or “agree” to this Agreement, Licensee acknowledges and agrees that it has read and understood this Agreement, has had an opportunity to discuss this Agreement with its legal and other advisors, and agrees to be bound by the terms and conditions of this Agreement. This Agreement shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.