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SDK EVALUATION AND DEVELOPMENT LICENSE AGREEMENT
1. LICENSE
1.1 Evaluation License Grant. Subject to the terms and conditions of this agreement, Semtech hereby grants to you a nonexclusive, non-transferable, limited license, without the right to sublicense, to internally use the Licensed IP for a period of ninety (90) days after you have downloaded the Licensed IP (“Evaluation Period”) solely for evaluation purposes only to determine whether to purchase certain product directly or indirectly from Semtech (“Semtech Product”). This evaluation license will automatically terminate at the end of the Evaluation Period.
1.2 Development License Grant. If you purchase or place a purchase order to purchase any Semtech Product before the end of the Evaluation Period, subject to the terms and conditions of this agreement, Semtech hereby grants to you a nonexclusive, non-transferable, limited license, without the right to sublicense except as expressly stated in Section 1.3, to: (i) internally use, reproduce, and create derivative works of the Licensed IP solely to develop your products which would incorporate the Semtech Product; and (ii) use, make, have made, sell, offer for sale, and otherwise distribute your products developed using the Licensed IP and incorporating the Semtech Product. If you do not purchase or place a purchase order to purchase any Semtech Product before the end of the Evaluation Period, Semtech does not grant to you any development license and this agreement is automatically terminated.
1.3 Sublicensing. The licenses granted in Sections 1.1 and 1.2 do not include the right to sublicense, except you may sublicense the rights granted under Section 1.2 to your affiliates or contractors performing development or manufacturing services on your behalf, but solely to the extent of such services, and provided that you are responsible for their compliance to the terms and conditions herein.
1.4 Restrictions. You acknowledge that the Licensed IP contains valuable trade secrets of Semtech. Accordingly, except as permitted under Sections 1.1, 1.2, and 1.3, you agree not to: (i) modify, adapt, alter, translate, or create derivative works from the Licensed IP; (ii) merge the software included in the Licensed IP with other software; (iii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Licensed IP to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for any object code portion of the software included in the Licensed IP; or (v) use or copy the Licensed IP for any purpose not expressly permitted under this agreement, including to develop products which do not include any Semtech Product.
1.5 Limited Application Use. The Licensed IP is not intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the Licensed IP could lead to death, personal injury, or severe physical or environmental damage.
1.6 Proprietary Rights. The Licensed IP and all worldwide intellectual property rights therein, are the exclusive property of Semtech and its suppliers. All rights in and to the Licensed IP not expressly granted to you in this agreement are reserved by Semtech. The Licensed IP is licensed, not sold, for use only under the terms of this agreement. This agreement does not grant you title to the Licensed IP or any copies thereof. You will not remove or alter any copyright or other proprietary rights notices provided on the Licensed IP.
1.7 No Endorsement. Except as expressly authorized by Semtech, you will not use any name, logo, or trademark of Semtech to market your products or otherwise suggest that your products are endorsed by Semtech. There is no endorsement by Semtech, express or implied, for any products you develop using or incorporating the Licensed IP.
2. WARRANTY DISCLAIMER. THE LICENSED IP IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SEMTECH AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS WITH REGARD TO THE LICENSED IP.
3. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SEMTECH OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED IP, EVEN IF SEMTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SEMTECH’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500).
4. SUPPORT. Semtech will have no obligation to provide support or maintenance for the Licensed IP. However, to the extent Semtech provides any updates or upgrades of the Licensed IP (collectively, “Updates”) to you, the Updates are licensed to you pursuant to Sections 1.1, 1.2 and 1.3 of this agreement and provided “AS IS.”
5. INDEMNITY. You will indemnify, defend, and hold harmless Semtech and its officers, directors, employees and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ fees) arising from or relating to any use or misuse of the Licensed IP by you, your affiliate or your sublicensee.
6. CONFIDENTIALITY. The Licensed IP constitutes confidential information of Semtech (the “Confidential Information”). You will not use the Confidential Information for any purpose not expressly permitted by this agreement, and will disclose the Confidential Information only to your employees and contractors who have a need to know for purposes of this agreement and who are under a duty of confidentiality no less restrictive than your duties hereunder. You will take measures to maintain the confidentiality of the Confidential Information equivalent to those measures you use to maintain the confidentiality of your own confidential information of like importance, but in no event less than reasonable measures. You will give immediate notice to Semtech of any unauthorized use or disclosure of the Confidential Information that comes to your attention and agree to assist Semtech in remedying such unauthorized use or disclosure.
7. TERM AND TERMINATION. This agreement will continue for as long as you use the Licensed IP for the purposes stated in Section 1.2, unless earlier terminated pursuant to Section 1.2 or this Section 7. Semtech may terminate this agreement, effective immediately upon notice to you, if you breach any provision of this agreement and fail to cure such breach (if curable) within ten (10) days after receiving notice thereof from the Semtech. You may terminate this agreement without cause by providing written notice to that effect to Semtech and returning all copies of the Licensed IP to Semtech. Upon termination of this agreement, you must return all copies of the Licensed IP to Semtech and erase from your computer systems all references to the Licensed IP. Sections 1.4, 1.6, 2, 3, 5, 6, and 8 will survive any termination of this agreement.
8. GENERAL.
8.1 Governing Law. This agreement shall be governed exclusively by the laws of Switzerland, without regard to rules regarding conflicts of law that may be applicable. Any dispute arising under this agreement must be submitted to the courts located in Switzerland, and each party irrevocably submits to the jurisdiction and venue of any such courts in any such action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
8.2 U.S. Government Users. The Licensed IP is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. government end users acquire the Licensed IP with only those rights set forth herein.
8.3 Export Restrictions. You agree that you will not export or re-export the Licensed IP to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export or re-export Licensed IP (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not necessarily limited to Cuba, Iran, Iraq, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Licensed IP back to such country; (ii) to any end-user who you know or have reason to know will utilize the Licensed IP in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government. You warrant and represent that no U.S. federal agency has suspended, revoked, or denied your export privileges.
8.4 Remedy. You acknowledge that any actual or threatened breach of Section 1.4 or 6 constitutes immediate, irreparable harm to Semtech, for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any action is brought to enforce this agreement, the prevailing party will be entitled to receive its reasonable attorney’s fees, court costs, and other collection expenses, in addition to any other relief it may receive.
8.5 Assignment. You may not assign or transfer any of the rights or obligations under this agreement to any third party, under operation of law or otherwise, without the prior written consent of Semtech. Any attempted transfer in violation of the foregoing will be null and void. If you undergo any change in control, such change in control shall be deemed an assignment for purposes of this agreement.
8.6 Notice. All notices to Semtech under this agreement must be in writing and will be effective (i) upon personal delivery, (ii) three (3) business days after sending by international commercial courier, or (iii) one (1) business day after sending by facsimile, with confirmation of delivery, to the following address or another address designated by Semtech: Semtech International A.G., Bionstrasse 1, 9015 St. Gallen, Switzerland, Fax: 41 71 313 4839, attention Legal Department.
8.7 Miscellaneous. All waivers must be in writing and signed by an authorized representative of the party to be charged. Any waiver or failure to enforce any provision of this agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this agreement, or the application of any such provision to any person or set of circumstances, is determined to be invalid, unlawful, void, or unenforceable to any extent, the remainder of this agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void, or unenforceable, will not be impaired or otherwise affected, and will continue to be valid and enforceable to the fullest extent permitted by law. This agreement sets forth the entire agreement and final understanding of the parties relating to the subject matter hereof and supersedes and terminates all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. This agreement may not be amended, modified, altered, or supplemented other than by means of a written instrument duly executed by the authorized representative of each party and delivered on behalf of each party.