DO NOT IN ANY WAY USE THIS SOURCE CODE UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY USING THIS SOURCE CODE IN ANY WAY, YOU AGREE TO THE TERMS OF THIS LICENSE AGREEMENT (THIS “AGREEMENT”). IF YOU DO NOT WISH TO SO AGREE, DO NOT COPY OR USE IN ANY WAY THIS SOFTWARE. IF YOU ARE AN AGENT OR EMPLOYEE OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT.
1. DEFINED TERMS.
1.1 “Confidential Information” means the Software provided in Source Code form, and the Documentation.
1.2 “Derived Code” means derivative work, as defined by 17 USC Section 101, of the Software provided to licensee in Source Code form.
1.3 “PT” means Principled Technologies. Inc. and its wholly owned subsidiaries and affiliates as the case may be.
1.4 “Documentation” means installation and user guides, and manuals and other documentation in either printed or machine-readable form documentation corresponding to the Software provided in connection with, under, or subject to this Agreement.
1.5 “Software” means any computing programming code that is provided in connection with, under, or subject to this Agreement, but does not include computing programming code that is (i) delivered with the Software but is Open Source Software and/or (ii) subject to an agreement, obligation and/or license (in each case whether or not accompanying such computing programming code) intended to supersede or override this Agreement.
1.6 “Licensee” or “Licensee's” means Licensee as an individual or, if Licensee is accepting these terms on behalf of a legal entity (such as a corporation, partnership or government agency), “Licensee” or “Licensee's” means such legal entity.
1.7 “license-notices.txt” means the file provided with the Software that identifies any notices or additional information about the Software.
1.8 “Object Code” means computer programming code in binary form suitable for machine execution by a processor without the intervening steps of interpretation or compilation.
1.9 “Open Source Software” means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (a) be disclosed or distributed in Source Code form; or (b) be licensed by the user to third parties for the purpose of making and/or distributing derivative works; or (c) be redistributable at no charge. Open Source Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models substantially similar to any of the following: (a) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g., PERL), (c) the Mozilla Public license, (d) the Netscape Public License, (e) the Sun Community Source license (SCSL), (f) the Sun Industry Source license (SISL), and (g) the Common Public License (CPL).
1.10 “Product” means a hardware or software product (or any combination thereof) with which the Software was intended to operate (as described in the Software's description. documentation or specifications).
1.11 “Source Code” means computer programming code in an uncompiled form readable by humans which cannot be executed by a processor unless it is compiled into binary form.
2. LICENSE GRANTS AND RESTRICTIONS.
2.1 Licenses to Software. PT grants to Licensee the following non-transferable, non-exclusive, worldwide, royalty-free, perpetual (unless terminated in accordance with the Section 9 (“Termination”) below), non-sublicensable licenses.
2.1.1 Internal Use License. A license under PT’s copyrights to reproduce and to use a reasonable number of copies of the Software, alone or to the extent incorporated into Derived Code of the Software, internally within Licensee's facilities solely and exclusively for the purpose of assessing computing capabilities and performance of Products.
2.1.2 License to Create Derivative Works. A license under PT’s copyrights to create Derived Code of the Software provided in Source Code form, internally within Licensee's facilities and solely and exclusively for the purpose of assessing computing capabilities and performance of Products and not for distribution outside Licensee’s facilities.
2.2 Licenses to Documentation. PT grants to Licensee the following non-transferable, non¬exclusive, worldwide, royalty-free, perpetual (unless terminated in accordance with the Section 9 (“Termination”) below), non-sublicensable licenses.
2.2.1 Internal Use License. A license under PT’s copyrights to reproduce a reasonable number of copies of the Documentation internally within Licensee's facilities solely and exclusively for the purpose of manufacture and/or internal development of Products.
2.3 Restrictions. Licensee shall not:
2.3.1 Have any right or license to reverse engineer, decompile or disassemble any Software not provided in Source Code form, except in jurisdictions where licenses for such activities cannot be withheld;
2.3.2 Grant to any thirdparty any license rights under this Agreement and any such attempt is null and void:
2.3.3 Alter, remove or obscure any proprietary notices from the Software:
2.3.4 Subject the Software or Documentation, in whole or in part, to any license obligations associated with Open Source Software including combining or distributing the Software and/or with Open Source Software in a manner that subjects any portion of the Software to any license obligations of such Open Source Software:
2.3.5 Make any statement that any Products are endorsed by, certified by or that its performance is guaranteed by PT or the BenchmarkXPRT Development community;
2.3.6 Imply or otherwise indicate that Licensee is selling or transferring title to any Software; and
2.3.7. Publically publish any MobileXPRT benchmark results based upon a modified workload or other workload not a part of the Software.
3. LICENSE TO USE COMMENTS AND SUGGESTIONS.
This Agreement does NOT obligate Licensee to provide PT with comments or suggestions or source code contributions regarding the Software. However, should Licensee provide PT with comments or suggestions or source code contributions for the modification, correction, improvement or enhancement of (a) the Software or (b) PT products or processes which work with the Software, Licensee grants to PT a non-exclusive, irrevocable, worldwide, royalty-free license, with the right to sublicense PT’s licensees and customers, under Licensee's intellectual property rights, the rights to use and disclose such comments and suggestions and source code contributions in any manner PT chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of PT’s and its sublicensee's products embodying such comments and suggestions in any manner and via any media PT chooses, without reference to the source.
4. OWNERSHIP, NO OTHER RIGHTS.
4.1 The Software is protected by the intellectual property laws of the United States and other countries, and international treaty provisions. Except as otherwise expressly provided in Section 2 (“License Grants”) above, PT grants no expressed or implied rights under PT patents, copyrights, trademarks, or other intellectual property rights. All rights not expressly granted to Licensee pursuant to Section 2 of this Agreement are hereby expressly reserved for PT.
4.2 Title to all copies of the Software and any intellectual property therein remains with PT.
5.1 Obligations of Receiving Party. Licensee will maintain the confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. Licensee will not disclose any Confidential Information to any employees or to any third parties except to the Licensee's employees, parent company and majority-owned subsidiaries who have a need to know and who agree to abide by nondisclosure terms at least as comprehensive as those set forth herein; provided that the Licensee will be liable for breach by any such entity. For the purposes of this Agreement, the term “employees” shall include independent contractors of Licensee, who have agreed in writing to Licensee that they are subject to the terms of this Agreement, and they retain no license rights or other rights hereunder once they have discontinued their performance of work on Licensee's behalf. Licensee, however, will not be liable for the disclosure of any Confidential Information which is:
a. rightfully in the public domain other than by a breach of a duty to PT;
b. rightfully received from a third party without any obligation of confidentiality;
c. rightfully known to the Licensee without any limitation on use or disclosure prior to its receipt from PT;
d. independently developed by employees of Licensee; or
e. generally made available to third parties by PT without restriction on disclosure.
Title or the right to possess Confidential Information as between the parties will remain with PT.
6. EXCLUSION OF WARRANTIES.
THE SOFTWARE IS PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND AND POSSIBLY WITH DEFECTS. PT MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE. PT SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.
PT may make changes to the Software, or to items referenced therein, at any time without notice, but is not obligated to support, update or provide training for the Software. PT may in its sole discretion offer such services under separate terms at PT’s then-current rates. Licensee may request additional information on PT service offerings from a PT sales representative.
8. LIMITATION OF LIABILITY.
8.1 IN NO EVENT SHALL PT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION: LOST PROFITS, LOST DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF PT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8.2 SOFTWARE LICENSED HEREUNDER IS NOT DESIGNED OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO PERSONAL INJURY OR DEATH. LICENSEE SHALL INDEMNIFY AND HOLD PT HARMLESS AGAINST ALL CLAIMS, COSTS, DAMAGES AND EXPENSES, AND REASONABLE ATTORNEY FEES ARISING OUT OF, DIRECTLY OR INDIRECTLY, THE USE OF THE SOFTWARE BY LICENSEE, AND ANY CLAIM OF PRODUCT LIABILITY, PERSONAL INJURY OR DEATH ASSOCIATED WITH ANY UNINTENDED USE, EVEN IF SUCH CLAIM ALLEGES THAT PT WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE SOFTWARE.
8.3 THE WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PT AND LICENSEE. PT WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS
9. TERM AND TERMINATION.
9.1 This Agreement. PT may terminate this Agreement at any time if Licensee violates its terms. Upon termination, Licensee will immediately destroy the Software (including providing certification of such destruction back to PT) or return all copies of the Software to PT. In the event of termination of this Agreement, all licenses granted to Licensee hereunder shall immediately terminate.
10.1 Applicable Laws. Any claims arising under or relating to this Agreement shall be governed by the internal substantive laws of the State of North Carolina or federal courts located in North Carolina, without regard to principles of conflict of laws. Each Party hereby agrees to jurisdiction and venue in the courts of the State of North Carolina for all disputes and litigation arising under or relating to this Agreement. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties consent to the personal jurisdiction of the above courts.
10.2 Export Regulations I Export Control. Licensee shall not export, either directly or indirectly, any product, service or technical data or system incorporating such items without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. In the event any product is exported from the United States or re-exported from a foreign destination by Licensee, Licensee shall ensure that the distribution and export/re-export or import of the product is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. Licensee agrees that neither Licensee nor any of its subsidiaries will export/re-export any technical data, process, product, or service, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining such license or approval.
10.3 Government Restricted Rights. The Software is a “commercial item” as that term is 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.
10.4 Assignment. PT may assign its rights or delegate its obligations or any part thereof under this Agreement without prior consent from Licensee. Licensee may not assign, whether in conjunction with a change of ownership, merger, acquisition, sale or transfer of all, substantially all or any part of Licensee's business or assets or otherwise, either voluntarily, by operation of law or otherwise, any portion of this Agreement. Any attempt by Licensee to assign or delegate any rights, duties or obligations set forth in this Agreement without PT’s prior written consent shall be deemed a material breach of this Agreement and shall be null and void. Except as provided above, the terms and conditions of this Agreement shall bind and inure to each party's successors and assigns.
10.5 Entire Agreement. The terms and conditions of this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and merges and supersedes all prior, contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties hereto shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided for herein. PT is not obligated under any other agreements unless they are in writing and signed by an authorized representative of PT. Without limiting the foregoing, terms and conditions on any purchase orders or similar materials submitted by Licensee to PT, and any terms contained in PT's standard acknowledgment form that are in conflict with these terms, shall be of no force or effect.
10.6 Attorneys' Fees. In the event that any proceeding or lawsuit is brought by PT, or Licensee in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal.
10.7 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of Sections 2, 4 or 5 of this Agreement by Licensee will cause PT irreparable damage for which recovery of money damages would be inadequate, and that PT shall be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law.
10.8 Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery or by certified or registered mail, return receipt requested, and shall be deemed given upon receipt or five (5) days after deposit in the mail, whichever is sooner.
10.9 No Agency. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties.
10.10 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
10.11 Waiver. The failure of any party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
10.12 Language. 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 Licensee or PT. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, shall be in the English language.