WIND RIVER SYSTEMS, INC.
END USER LICENSE AGREEMENT
THIS
END USER LICENSE AGREEMENT ("Agreement") is a legal
contract between Customer ("Customer" or "you") and Wind
River Systems, Inc, ("Wind River"). The
right to use the Product is granted only on the condition that Customer agrees
to the following terms. If Customer does
not agree to the terms of this Agreement, then Wind River and its licensors are
unwilling to license the Software to Customer and you may not install the
Product.
If you have signed a
written agreement with wind river for the product provided to you hereunder the
terms of such written agreement will solely govern your use of such product.
otherwise, your use of such product shall be solely governed by the product evaluation
license agreement terms below.
THE
SOFTWARE AND ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES
COPYRIGHT LAW AND INTERNATIONAL TREATY.
UNAUTHORIZED USE, REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND
CRIMINAL PENALTIES.
PLEASE
READ THE TERMS CAREFULLY BEFORE CLICKING ON THE "I ACCEPT" BUTTON, AS
BY CLICKING ON THE "I ACCEPT" BUTTON YOU ACKNOWLEDGE THAT YOU HAVE
READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS
TERMS AND CONDITIONS.
1. DEFINITIONS.
1.1
"Approved Host" means the host
computer on which Customer is authorized to use the Software pursuant to this
Agreement, as specified in the Product documentation.
1.2
"Confidential Information"
means (i) the Software, (ii) the technology, ideas, know-how, documentation,
processes, algorithms and trade secrets associated with the Product (iii) any
access keys related to the Product, and (iv) any other information, whether
disclosed orally or in written or magnetic media, that is identified as
"confidential," "proprietary"
or with a similar legend at the time of such disclosure. Confidential Information shall not include
any information which is: a) published or otherwise available to the public
other than by breach of this Agreement by Customer; b) rightfully received by
Customer from a third party without confidential limitations; c) independently
developed by Customer as evidenced by appropriate records; d) known to Customer
prior to its first receipt of same from Wind River as evidenced by appropriate
records; e) hereinafter disclosed by Wind River to a third party without
restriction on disclosure; or f) approved for public release by written
authorization of Wind River. If any
Confidential Information must be disclosed to any third party by reason of
legal, accounting or regulatory requirements beyond the reasonable control of
Customer, Customer shall promptly notify Wind River of the order or request and
permit Wind River (at its own expense) to seek an appropriate protective order.
1.3 "Development
Location" means a single specific address of
Customer's facility consisting of a single building or multiple buildings on a
contiguous campus where the Approved Host is physically located and upon which
the Software is first installed and put into use.
1.4 "Feedback"
means the results of any evaluation of the Product
by Customer, including Customer's opinions, observations, comments, criticisms,
and suggested improvements, whether in written or oral form.
1.5
"Hardware"
means the reference board, microprocessor emulation and any other hardware
contained in the Product (if any).
1.6 "Intellectual
Property Rights" means all copyrights, trademarks,
trade secrets, patents, mask works and other intellectual property rights
recognized in any jurisdiction worldwide, including all applications and
registrations with respect thereto.
1.7
"Object Code" means computer
programming code in the form not readily perceivable by humans and suitable for
machine execution without the intervening steps of interpretation or compilation.
1.8
"Product"
means the Software (whether in Object or Source Code) and any Hardware provided
under this Agreement, including any accompanying documentation and updates
thereto, provided by Wind River to Customer under this Agreement.
1.9 "Software"
means (i) the computer programming code and accompanying documentation,
including updates (if any), provided by Wind River under this Agreement, and
(ii) modification thereto and full or partial copies thereof, whether such
copies are provided by Wind River or made by Customer as permitted under this
Agreement (the "Permitted Modifications").
Permitted Modifications shall include without limitation, any additions,
adaptations, modifications, improvements, corrections, variations,
enhancements, revisions, or interface elements, in any form or medium
whatsoever, that is derived in any manner from the Software. The definition of Software includes without
limitation the Object Code, the Operating System, Tools, Source Code, or any
combination of these. The definition of
Software excludes all materials provided by Wind River to Customer to the
extent such materials are subject to any of the following licenses: GNU General
Public License, GNU Library General Public License, GNU
Lesser Public License.
1.10 "Source
Code" means computer programming code in
human readable form that is not suitable for machine execution without the
intervening steps of interpretation or compilation.
2. LICENSE. Subject to Customer's compliance with the
terms and conditions of this Agreement, Wind River hereby grants to Customer a
restricted, personal, non-transferable, non-exclusive, limited, internal-use
license: (i) to use the Product solely at the Development Location, on the
Approved Host and for the sole purpose of internally evaluating the Software;
(ii) to use the Software on the Approved Host or solely in conjunction with the
Hardware, as applicable; (iii) to modify the Source Code solely to the extent
necessary to evaluate the use of the Software in the development of prospective
Customer products; and (iv) to reproduce the Software for archive purposes,
consistent with Customer's standard archive procedures. Customer shall reproduce and include any and
all copyright notices and proprietary rights legends, as such notices and
legends appear in the original Software, on any copy of the Software, or any
portion thereof, and in any modifications.
3. TESTING; USE OF TEST RESULTS. Customer may evaluate the Software in
Customer's day-to-day business environment and in production-like activities,
but will not use the Software in critical operations or for any commercial
purpose. Customer may disclose any
Feedback from its evaluations only to Wind River. Should Customer provide Wind River with
Feedback, Wind River will have the right to use such Feedback and related
information in any manner it deems appropriate.
4. RESTRICTIONS.
4.1 The Product shall be
handled, used and stored, solely at the Development Location. Although the Software may be used either from
a single machine or a server, there shall be no external network access of the
Software (i.e., by any computers or terminals not located at the Development
Location).
4.2 Access to the
Product shall be limited to employees of Customer who (i) require access to the
Product for the purposes set forth in Section 2, ("License") and (ii)
have signed an employee agreement in which such employee agrees to protect
third party confidential information with terms no less stringent than those
set forth in this Agreement. Customer
agrees that any breach by any employee of such employee's obligations under
such confidentiality agreements shall also constitute a breach by Customer
hereunder. For the purposes of this
Agreement, the definition of "employee" shall be as defined for
purposes of the U.S. Copyright Act and expressly excludes independent
contractors. Customer shall maintain
and, upon Wind River's reasonable request, provide to Wind River, the names of
all employees who have had access to the Product.
4.3 Customer shall not (i) use the Product, or
any portion thereof, for any productive or commercial purpose; (ii) modify,
create derivative works of, translate, reverse engineer, decompile, disassemble
(except to the extent applicable laws specifically prohibit such restriction)
or attempt to derive the Source Code of any Software provided to Customer in
Object Code; (iii) market, distribute or otherwise transfer copies of the
Software to others; (iv) sublicense, rent, lease, loan, timeshare, sell,
distribute, disclose, publish, assign or transfer any rights, grant a security
interest in, or transfer possession of the Product; (v) reproduce the Software
other than as specified in Section 2; or
(vi) distribute externally or to any third party any communication that compares
the features, functions or performance characteristics of the Product with any
other product of Customer's or any third party.
4.4 Customer shall use
its best efforts to protect the Product from unauthorized access, reproduction,
disclosure or use. In the event Customer
becomes aware of any unauthorized use or disclosure of Product, Customer shall
notify Wind River immediately in writing and shall give full cooperation, at
Customer's expense, to minimize the effects of such unauthorized use or disclosure.
4.5 UPON TRANSFER OF
ANY COPY OF THE PRODUCT TO ANOTHER PARTY, THIS LICENSE WILL AUTOMATICALLY
TERMINATE.
4.6 Elements of the
Software may contain or be derived from materials of third party licensors
("Third Party Software"). In addition to
or in lieu of this Agreement, such Third Party Software may be subject to
additional terms, which terms are
set forth in the Software Source Code and/or the Third Party Notice file that
accompanies the Software. Such terms may
include, but are not limited to, the Eclipse Public
License, the Academic Free License, the Apache Software License, the Artistic
License, the BSD License, the Mozilla Public License and/or the Python License.
5. CONFIDENTIAL INFORMATION. Customer shall not use or disclose any Confidential
Information, except as expressly authorized by this Agreement, and shall
protect all such Confidential Information using the same degree of care which
Customer uses with respect to its own proprietary information, but in no event
with safeguards less than a reasonably prudent business would exercise under
similar circumstances. Customer's
obligations regarding the protection of Confidential Information shall survive
any expiration or termination of the Agreement.
Customer shall take prompt and appropriate action to prevent
unauthorized use or disclosure of the Confidential Information.
6. OWNERSHIP. Wind River and its licensors shall retain
exclusive ownership of all worldwide Intellectual Property Rights in and to the
Product and any copies and modifications thereof. Customer hereby assigns to Wind River any
such rights Customer may have in and to the foregoing. All rights in and to the Product not
expressly granted to Customer in this Agreement are expressly reserved for Wind
River and its licensors.
7. TERM AND TERMINATION. This Agreement shall commence upon the date
the Product is installed (the "Effective Date") and continue for thirty
(30) days. This Agreement will
immediately terminate upon Customer's breach of this Agreement. Upon termination, Customer shall (i) not use
the Product for any purpose whatsoever, (ii) immediately destroy or return all
material belonging to Wind River or its licensors, including without limitation
all copies of the Product and Wind River Confidential Information then in
Customer's possession or control, and (iii) to certify to Wind River in writing
that it has done so. These remedies
shall be cumulative and in addition to any other remedies available to Wind River. The provisions in Sections 1-Definitions,
5-Confidential Information, 6-Ownership, 7-Term and Termination, 10-Warranty
Disclaimer, 11-Limitation of Liability, and 13-General shall survive any
termination of this Agreement.
8. KEYS AND ACCESS. Wind River agrees to provide to Customer those
Product access keys (the "Keys") which are reasonably necessary to
permit Customer to gain access to the Software contained on media shipped to
Customer and which Software has been properly licensed to Customer pursuant to
a license agreement. All such Keys shall
be considered the Confidential Information of Wind River. Notwithstanding anything to the contrary in
this Agreement, Customer hereby acknowledges that Customer shall have no right
or license to any software shipped to Customer on media as provided above which
software is not properly licensed pursuant to a license agreement, that any
such software is included therein solely as a matter of administrative
convenience, and Customer further agrees not to attempt to gain access to, or
permit any third party to attempt to gain access to, such software.
9. AUDIT.
Customer agrees to maintain accurate written records of the location and
use of each copy of the Product in Customer's possession. To ensure compliance with the terms of this
Agreement, Wind River shall have the right, during the term of this Agreement
and for six (6) months thereafter, exercisable upon reasonable notice, to
conduct an inspection and audit of such records and to obtain true and correct
photocopies of such records, during Customer's regular business hours at
Customer's offices, and in such a manner as not to interfere unreasonably with
Customer's normal business activities.
10. WARRANTY DISCLAIMER. THE PRODUCT IS LICENSED FOR CUSTOMER'S
TEMPORARY EVALUATION "AS IS" AND WIND RIVER AND ITS LICENSORS
DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY WIND RIVER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL IN
ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
10.1 Third Party Actions; Security Threats.
Wind River makes no warranty with respect to any malfunctions or other errors
in its hardware or software products caused by virus, infection, worm or
similar malicious code not developed by Wind River. Wind River makes no warranty that any
hardware or software products will protect against all possible security threats,
including intentional misconduct by third parties. Wind River is not liable for any downtime or
service interruption, for any lost or stolen data or systems, or for any other
damages arising out of or relating to any such actions or intrusions.
11. LIMITATION OF LIABILITY. WIND RIVER AND ITS LICENSORS SHALL NOT BE
LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY
KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE
GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER
LEGAL OR EQUITABLE THEORY EVEN IF WIND RIVER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
WILL WIND RIVER'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF
OR RELATED TO THIS AGREEMENT EXCEED U.S. $50.00 OR THE AMOUNT (IF ANY) CUSTOMER
ACTUALLY PAID TO WIND RIVER UNDER THIS AGREEMENT.
THE
WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS
OF THE BARGAIN BETWEEN WIND RIVER AND CUSTOMER.
WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE PRODUCT WITHOUT SUCH
LIMITATIONS.
12. Export Control. All software and
technical information delivered under this Agreement are subject to U.S. export
controls under the Export Administration Regulations (the "EAR") or the
International Traffic in Arms Regulations (the "ITAR") and may be subject to
export, re-export or import regulations in other countries. Customer agrees to strictly comply with all
such laws and regulations. Customer will not export or re-export the software
and technical information, directly or indirectly, to: (1) any countries that
are subject to US export restrictions (currently including, but not necessarily
limited to, Cuba, Iran, North Korea, Sudan, and Syria); (2) any end user who
Customer knows or has reason to know will utilize them in the design,
development or production of nuclear, chemical or biological weapons, or rocket
systems, space launch vehicles, and sounding rockets, or unmanned air vehicle
systems; or (3) any end user who has been prohibited from participating in US
export transactions by any federal agency of the US government. Some of Wind
River's products are classified as "restricted" encryption products under
Section 740.17(b)(2) of the EAR and may not be exported or re-exported to
government end-users (as defined in Section 772 of the EAR) outside the
countries listed in Supplement No. 3 to Part 740 of the EAR without
authorization from the U.S. government.
13. GENERAL.
13.1 Governing
Law and Venue. This
Agreement shall be governed in all respects by the laws of California, without
regard to conflicts of law principles.
The United Nations Convention on Contracts for the International Sale of
Goods is specifically excluded from application to this Agreement. All disputes arising under this Agreement
shall be brought exclusively in Superior Court of the State of California in
San Francisco County or the U.S. District Court for the Northern District of
California in San Francisco, California, as permitted by law, provided,
however, that the parties shall be entitled to seek injunctive relief in the
appropriate forum. Customer consents to
the personal jurisdiction of the above courts.
In any proceeding or lawsuit brought by Wind River or Customer in
connection with this Agreement, the prevailing party shall be entitled to its
costs, expert witness fees and reasonable attorneys' fees, including costs and
fees on appeal.
13.2 Government
End Users. All software and any data relating thereto or
derived therefrom are "commercial items" as defined in 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.
13.3 Injunctive
Relief.
Customer agrees that its breach of this Agreement will cause Wind River
irreparable harm for which recovery of money damages would be inadequate, and
that Wind River shall therefore be entitled to obtain timely injunctive relief
to protect Wind River's rights in addition to any and all remedies available at
law.
13.4 Notices. All notices under
this Agreement shall be: (a) in writing;
(b) delivered by personal delivery or certified or registered mail, return
receipt requested, and deemed given upon personal delivery or five (5) days
after deposit in the mail. Notices shall
be sent to the parties at the address where the Product is installed or used or
such other address as either party may designate for itself in writing. If the notice is to Wind River, a copy shall
also be sent to: Wind River Systems,
Inc., 500 Wind River Way, Alameda, California 94501, USA, Attn:
General Counsel.
13.5 Force
Majeure.
Neither party shall be liable for any failure or delay (except for the payment
of money) on account of strikes, shortages, riots, insurrection, fires,
explosions, acts of God, war, governmental action, labor conditions, material
shortages or any other cause which is beyond the reasonable control of such
party.
13.6 Use
of Customer's Name.
Wind River may use Customer's name and may disclose that Customer is a
licensee of Wind River products or services.
Such public disclosures shall not indicate that Customer endorses Wind
River products without prior written permission from Customer. Upon Customer's public announcement of
product designed with or containing Wind River products or services, Wind River
may publicly disclose the nature of the Wind River involvement in said product.
13.7 Assignment. Customer may not
assign this Agreement, or any rights or obligations hereunder, whether by
operation of contract, law or otherwise, except with the express written
consent of Wind River, and any attempted assignment by Customer in violation of
this Section is void. Wind
River may assign this Agreement, and its rights and obligations hereunder, in
its sole discretion.
13.8 Miscellaneous. This Agreement shall
not create any agency, employment relationship, partnership or other form of
joint enterprise between the parties.
Failure to require performance shall not preclude a party from requiring
performance in the future. This
Agreement constitutes the entire agreement between Customer and Wind River and
supersedes all prior oral or written agreements between the parties with respect
to the subject matter hereof. The
terms and conditions of any purchase order or other instrument issued
by Customer in connection with this Agreement shall be of no force or
effect. This
Agreement may only be amended by a writing signed by the parties that refers
explicitly to this Agreement. If a
provision of this Agreement is unenforceable or invalid, the provision shall be
revised so as to best accomplish the objectives of the parties. This Agreement is in the English language
only, which language shall be controlling in all respects, and all versions of
this Agreement in any other language shall be for accommodation only and shall
not be binding on the parties to this Agreement.
Should
you have any questions concerning this Agreement, please write: Wind River
Systems, Inc., General Counsel, 500 Wind River Way,
Alameda, CA 94501, USA.
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