305 lines
26 KiB
Plaintext
Executable File
305 lines
26 KiB
Plaintext
Executable File
SOFTWARE LICENSE AGREEMENT
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This Software License Agreement (the "Agreement") is entered into as of August 10, 2017 (the
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"Effective Date"), by and between AMLOGIC (CA) CO., INC., with principal office at 2518 Mission
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College Blvd., Suite 120, Santa Clara, CA 95054, USA ("Amlogic"), with a place of business at 1600
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Amphitheatre Parkway, Mountain View, California 94043, USA ("Licensee"). The parties agree as
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follows:
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1. DEFINITIONS
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1.1 “Authorized Location” means the location set forth in a Software Description Form
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attached as an Exhibit to this Agreement and made part hereof by reference, or if none is listed,
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then the address for Licensee set forth above.
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1.2 “Authorized Licensee Product” means the specific product listed in a Software
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Description Form attached as an Exhibit to this Agreement and made part hereof by reference,
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or if none is listed, then any system level product sold by Licensee that incorporates the Amlogic
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Product and the Software or Derivative Work and includes other hardware and software provided
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by Licensee.
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1.3 “Amlogic Product” means any of the proprietary integrated circuit product(s) sold
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by Amlogic with which the Software was designed to be used.
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1.4 “Derivative Work” means any discrete modification to the Software made by Licensee
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pursuant to this Agreement and any modified, altered, enhanced or adapted version of the Software,
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or derivative work thereof (as that term is defined under applicable intellectual property law) based
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on the Software.
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1.5 “End User Agreement” means a written, legally enforceable agreement that (i) stipulates
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that the Software is licensed, not sold, and that title to and ownership of the Software and any portion
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hereof remain with Amlogic or its licensors; (ii) disclaims all express and implied warranties on behalf
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of Amlogic, and exclude liability of Amlogic and its licensors for any special, indirect, exemplary, incidental
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or consequential damages; and (iii) prohibits end user from (a) copying the Software, except as reasonably
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necessary for internal back-up purposes, (b) using and/or transferring the Software to any third party apart
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from an Authorized Licensee Product, (c) modifying the Software, (d) attempting to reverse engineer,
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decompile or disassemble any portion of the Software, or (e) exporting the Software or any underlying
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technology in contravention of any applicable US, PRC or foreign export laws and regulations.
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1.6 “Object Code” means those portions of the Software, if any, furnished to Licensee, in computer
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instruction code or machine-readable form generally produced by a compiler and suitable for execution as
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machine language instructions.
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1.7 “Software” means the software including without limitation Object Code and Source Code,
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provided by Amlogic to Licensee from time to time, and which is described in a Software Description Form
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attached as an Exhibit to this Agreement and made part hereof by reference.
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1.8 “Source Code” means those portions of the Software, if any, furnished to Licensee, in computer
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programming code or human-readable form that is not suitable for machine execution without the intervening
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steps of interpretation or compilation, including without limitation, C, C++, Python, Java or other computer
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languages.
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2. LICENSEE GRANT; OWNERSHIP
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2.1 License Grant. Subject to the terms and conditions of this Agreement, Amlogic hereby grants
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to Licensee, under all of Amlogic’s intellectual property rights in and to the Software, a limited, non-exclusive,
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non-transferrable, royalty-free license: (i) to use, modify and create Derivate Work from the Source Code,
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and to use the Object Code, without the right to sub-license, solely at the Authorized Location, solely for the
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purpose of incorporating the Software or Derivative Work in Authorized Licensee Product for use solely with
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Amlogic Product, and only if in compliance with Section 2.2 below; and (ii) to reproduce, distribute and
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sublicense, in Object Code only, copies of the Software or Derivative Work only to be incorporated in
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Authorized Licensee Product for use solely with the Amlogic Products to resellers, distributors and end users
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of such Authorized Licensee Product, and only if in compliance with Section 2.3 below.
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2.2 Restrictions on Modification. If and to the extent that the Software is designed to be compliant
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with any published standard (including without limitation, DOCSIS, HomePNA, IEEE, and ITU standards),
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Licensee may not make any modifications to the Software that would cause the Software or the accompanying
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Amlogic Product to be incompatible with such standard. Licensee shall be solely liable for any damages or
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cause of action that may arise from or relate to such modifications, and Amlogic reserves the right to
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immediately terminate this Agreement.
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2.3 Restriction on Distribution. Licensee shall only distribute the Software or Derivative Work
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to resellers, distributors and end users either: (a) physically embedded in the Authorized Licensee Product
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in a manner that is not readily accessible or (b) pursuant to an End User Agreement. By way of example only,
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an End User Agreement shall be required to distribute the Software or Derivative Work on a CD-ROM,
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floppy disk or by electronic transmission.
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2.4 Proprietary Notices. Licensee shall not remove, efface or obscure any copyright or trademark
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notices from the Software or Derivative Work. Licensee shall include reproductions of the Amlogic copyright
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notice with each copy of the Software and any Derivative Work, except where any of the foregoing is embedded
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in a manner not readily accessible. Licensee acknowledges that any symbols, trademarks, tradenames and
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service marks adopted by Amlogic to identify the Software or otherwise, belong to Amlogic and that Licensee
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shall have no claims to any rights therein.
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2.5 Ownership. Amlogic shall retain all right, title and interest, including all intellectual property rights,
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in and to the Software. Licensee hereby irrevocably assigns and agrees to assign to Amlogic all right, title and
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interest in and to the Derivative Work, including without limitation, all intellectual property rights in and to any
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inventions (whether or not patentable), know-how’s, ideas and information made or conceived thereof. Licensee
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agrees to perform all acts deemed reasonably necessary or desirable by Amlogic to permit and assist Amlogic,
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at Amlogic’s expense, to obtain and enforce the full benefits throughout the world of Licensee’s assignment
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of all right, title and interest in the Derivative Work to the Software and all related intellectual property rights
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thereof to Amlogic, including but not limited to execution of documents and assistance or cooperation in the
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registration and enforcement of any such intellectual property rights throughout the world. To the extent any
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of the foregoing cannot be assigned to Amlogic, Licensee hereby grants to Amlogic an exclusive, irrevocable,
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perpetual, royalty-free, fully paid-up, fully transferable, worldwide license (with rights to sub-license through
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multiple tiers of sublicensees) to use or practice such non-assignable right, title and interest. Notwithstanding
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the foregoing or any other provision of this Agreement, nothing contained herein shall be construed as granting
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Amlogic any right, title or interest in or to any of Licensee’s intellectual property or Confidential Information.
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2.6 Third Party Software. The Software is distributed to Licensee in aggregation with various third-party
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software (“Open Source Software”). The Open Source Software is distributed to Licensee under the terms of
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various “open source” license agreements. Licensee agrees to comply with the terms and conditions contained
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in all such Open Source Software licenses with respect to the applicable Open Source Software.
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2.7 No Other Rights Granted. Apart from the license rights expressly set forth in this Agreement,
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Amlogic does not grant and Licensee does not receive any ownership right, title or interest, or any security
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interest or other interests, in and to any intellectual property rights related to Software, Derivative Work,
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or in any copy or any part of the foregoing. Licensee shall not use, license, sell or otherwise distribute the
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Software or any Derivative Work except as provided in this Agreement, and shall not (or attempt to do so),
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directly or indirectly, reverse engineer, decompile or disassemble any portion of the Software, including
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without limitation Source Code and Object Code.
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2.8 Fees. In consideration of the licenses granted hereunder, Licensee shall pay to Amlogic the fees
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according to the terms set forth in each Software Description Form, if applicable. If the Software Description
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Form does not include payment terms, all payments under this Agreement shall be made within thirty (30)
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days of the invoice date. Licensee shall pay any taxes, duties or charges of any kind (including any sales,
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withholding or value added taxes) imposed by any federal, state or local governmental entity except for taxes
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based on Amlogic’s net income. If all or any part of any payment owed to Amlogic under this Agreement is
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withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its
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political subdivisions and/or any tax treaty between the US or PRC and any such country, such payment shall
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be increased by the amount necessary to result in a net payment to Amlogic of the amounts otherwise payable
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under this Agreement. Any amounts due under this Agreement which are not paid within thirty (30) days of their
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due date shall be subject to a late payment charge of the lower of: (i) one and one half percent (1.5%) per month
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(and shall thereafter bear interest at a rate of eighteen percent (18%) per annum until paid) or (ii) the highest
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interest rate permitted by applicable law. Each party is responsible for its own expenses under this Agreement.
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All fees payable under this Agreement are non-refundable.
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2.9 Covenant. Licensee hereby irrevocably agrees never to Assert against Amlogic and its affiliates,
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successors, purchasers and/or customers (through any tier of distribution) any claim that the Software or any
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Derivative Work infringes any intellectual property rights owned by Licensee. For purposes of this Section,
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“Assert” means to bring an action before any legal, judicial, arbitration, administrative, executive or other
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types of body or tribunal that has or claims to have authority to adjudicate such action in whole or in part.
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2.10 Personnel. With prior written consent of Amlogic, Licensee may exercise license rights granted
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to it pursuant to this Agreement through third parties (“Personnel”) working on its behalf (e.g., consultants,
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contractors and technology development partners), provided that Licensee shall cause such Personnel to be
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subject to and bound by the terms and conditions as set forth in this Agreement including without limitation
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Section 5. Any act or omission by Personnel acting in relation to this Agreement will be considered an act or
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omission by Licensee. Any breach by Personnel will be considered a breach of this Agreement by Licensee,
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and Licensee shall be jointly liable for any such breach by Personnel as if it was a breach by Licensee itself.
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2.11 Affiliate. With prior written consent of Amlogic, Licensee may designate an Affiliate (“Designee”)
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to execute a Software Description Form. Execution of a Software Description Form by Designee (or by Licensee
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on behalf of Designee) shall constitute: (i) a separate, distinct and independent contract between Amlogic and
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Designee; (ii) Designee’s independent acceptance of and agreement to be bound by the terms and conditions
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of this Agreement; and (iii) Licensee’s acceptance of and agreement to be jointly liable with Designee to Amlogic
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for any breach of the terms and conditions of this Agreement by Designee as if it was a breach by Licensee itself.
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Accordingly, any act or omission by Designee acting in relation to this Agreement will be considered an act or
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omission by Licensee. Any breach by Designee will be considered a breach of this Agreement by Licensee, and
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Licensee shall be jointly liable for any such breach by Designee as if it was a breach by Licensee itself. If the
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Software involves third-party technology, Designee shall confirm in writing to Amlogic that it has received
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authorization before any such Software will be provided. For purposes of this Section, “Affiliate” means an entity
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controlling, controlled by, or under common control, now or hereafter, of Licensee, but only so long as such control
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exists, and “control” means the ability to influence the acts of an entity by virtue of a controlling interest, directly
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or indirectly, of 50% or more of the voting rights of the capital of such entity.
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3. WARRANTY; SUPPORT
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3.1 NO WARRANTY. THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. AMLOGIC PROVIDES
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NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION, COURSE OF
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DEALING OR CONDUCT WITH LICENSEE, OR OTHERWISE. AMLOGIC SPECIFICALLY DISCLAIMS ANY IMPLIED
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WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR NONINFRINGEMENT CONCERNING
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THE SOFTWARE OR ANY UPGRADES TO OR DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF
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THE ABOVE, AMLOGIC GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT
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INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM INCLUDING,
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WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY.
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3.2 No Support. Nothing in this Agreement shall obligate Amlogic to provide any support for the Software.
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Amlogic may, but shall be under no obligation to, correct any defects in the Software or provide updates to Licensee.
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Licensee may, but is not required to, make reasonable efforts to report to Amlogic any defects it may uncover in the
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Software, so as to aid in creating improved revisions of the Software.
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3.3 End User Support. Licensee shall, at its own expense, be solely responsible for providing technical support
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and training to its customers or end users for Authorized Licensee Product, and Amlogic shall have no obligation with
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respect thereto. Licensee shall be solely responsible for, and Amlogic shall have no obligation to honor, any warranties
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that Licensee provides to its resellers, distributors, customers or end users with respect to the Software or Derivative
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Work. Licensee shall defend any claim against Amlogic arising from or in connection with any such warranties, express,
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implied, statutory or otherwise, and shall pay any settlements or damages awarded against Amlogic that are based on
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any such warranties.
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4. TERM AND TERMINATION
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4.1 Term and Termination. This Agreement shall commence on the Effective Date and shall remain in effect
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perpetually unless terminated as provided below. If Licensee defaults in a material obligation under this Agreement,
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and if the default is curable and Licensee fails to cure such default thirty (30) days after written notice of such default,
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Amlogic may immediately terminate this Agreement and the licenses granted hereunder upon written notice to Licensee.
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Licensee may terminate this Agreement at any time upon written notice to Amlogic and fulfillment of its obligations
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under Section 4.2 herein.
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4.2 Effect of Termination. Upon any termination of this Agreement, the rights and licenses granted to Licensee
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under this Agreement shall immediately terminate; provided, however, that sublicenses of the Software or Derivative
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Work in Object Code format, to the extent validly granted to end users pursuant to Section 2.1(ii) prior to termination
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of this Agreement, shall survive such termination subject to compliance with the obligations set forth herein. Upon
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termination, Licensee shall ship to Amlogic, within thirty (30) days, all tangible items in its possession or control which
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are proprietary to Amlogic, and Licensee shall destroy or return to Amlogic, at Amlogic’s option, all copies of the
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Software and Derivative Work (including without limitation Source Code) in its possession or control.
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4.3 Survival. The provisions of Sections 1, 2.2 to 2.9, 3, 4, 5, 6 and 7 shall survive the termination of this Agreement.
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5. CONFIDENTIALITY
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5.1 Existing NDA (if Applicable). If Amlogic and Licensee already have put in place a non-disclosure agreement
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that would protect communications made under this Agreement (the “NDA”), then all such communications shall be
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subject to the terms and conditions of such NDA, which the parties acknowledge shall be in full force and effect. The
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parties agree that the Software, Object Code, Source Code, and any accompanying documentation thereof, shall be
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considered Confidential Information under the NDA. In the event of a conflict between the terms of this Agreement
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and the terms of the NDA, the terms of this Agreement will prevail.
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5.2 Obligations if No NDA Exists. If no NDA exists, then the following terms shall apply: Licensee acknowledges
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and agrees that the Software, Object Code, Source Code, and any accompanying documentation thereof, and any other
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information (if such other information is identified as confidential or should be recognized as confidential under the
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circumstances) provided to Licensee by Amlogic hereunder (collectively, “Confidential Information”) constitute the
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confidential and proprietary information of Amlogic, and that Licensee’s protection thereof is an essential condition
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to Licensee’s use and possession of the Confidential Information. Licensee shall retain all Confidential Information in
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strict confidence and not disclose it to any third party or use it in any way except as permitted by this Agreement without
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Amlogic’s express written consent. Licensee will exercise at least the same amount of diligence in preserving the secrecy
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of the Confidential Information as it uses in preserving the secrecy of its own most valuable confidential information, but
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in no event less than reasonable diligence. Information shall not be considered Confidential Information if and to the
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extent that it: (i) was in the public domain at the time it was disclosed or has entered the public domain through no
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fault of Licensee; (ii) was known to Licensee, without restriction, at the time of disclosure as proven by the files of
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Licensee in existence at the time of disclosure; or (iii) becomes known to Licensee, without restriction, from a source
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other than Amlogic without breach of this Agreement by Licensee and otherwise not in violation of Amlogic’s rights.
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Because of the unique and valuable nature of the Confidential Information, Licensee acknowledges and agrees that Amlogic
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will suffer irreparable harm in the event that Licensee fails to comply with any of its obligations herein and that monetary
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damages will be inadequate to compensate Amlogic for such breach.
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5.3 Source Code Protection. Licensee shall not under any circumstances copy, duplicate or otherwise reproduce
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the Source Code in any manner except as provided herein. Licensee is granted the right to make one (1) archival or backup
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copy of the Source Code, which shall be marked as an archival copy and as the confidential and proprietary property of
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Amlogic to which access is restricted. Licensee agrees to inform all employees and contractors who are given access by
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Licensee to the Software, including the Source Code, the Object Code, or any accompanying documentation, that such
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materials are confidential and trade secrets of Amlogic licensed to Licensee as such.
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6. LIMITATION OF LIABILITY
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EXCEPT FOR A BREACH BY LICENSEE OF SECTION 2 (LICENSE GRANT; OWNERSHIP) AND/OR A BREACH BY EITHER PARTY
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OF SECTION 5 (CONFIDENTIALITY), IN NO EVENT SHALL LICENSEE, AMLOGIC OR ANY OF AMLOGIC’S LICENSORS BE LIABLE
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FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF
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LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS
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AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
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OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
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LIMITED REMEDY.
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AMLOGIC’S AGGREGATE LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL NOT
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EXCEED THE GREATER OF ONE HUNDRED UNITED STATES DOLLARS ($100.00) OR THE AMOUNTS PAID TO AMLOGIC BY
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LICENSEE HEREUNDER.
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7. MISCELLANEOUS
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7.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
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successors and assigns. Licensee may not assign this Agreement or any rights or obligation hereunder, directly or indirectly,
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by operation of law or otherwise, without the prior written consent of Amlogic, and any such attempted assignment shall be
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void. Notwithstanding the foregoing, Licensee may assign this Agreement to a successor of all or substantially all of its business
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or assets to which this Agreement relates provided that such successor is not a competitor of Amlogic. Amlogic may assign
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this Agreement to a successor of all or substantially all of its business or assets to which this Agreement relates with prior
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notice to Licensee.
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7.2 Notices. All notices between the parties shall be in writing and shall be deemed to have been given if personally
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delivered or sent by certified mail (return receipt requested), or telecopy, to the other party’s legal department at the address
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set forth in this Agreement, and for Amlogic to Attn: Legal Department, Amlogic (Shanghai) Co., Ltd. Building E5, 2555 Xiupu Road,
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Pudong District, Shanghai, P.R. China and such other address as is provided by notice as set forth herein. Notices shall be deemed
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effective upon receipt if personally delivered, three (3) business days after it was sent if by certified mail, or one (1) business day
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after it was sent if by telecopier.
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7.3 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of
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People’s Republic of China (“PRC”), without reference to choice of law provisions and the United Nations Convention on
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Contracts for the International Sale of Goods is hereby excluded. Any dispute arising from or in connection with this Agreement,
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which cannot be resolved in good faith by the parties themselves, shall be submitted to a court in Pudong New District, Shanghai,
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China applying PRC laws. The competent court decision shall be final and binding upon both parties. During court proceedings,
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both parties will not suspend, refuse or delay further performance of any obligations that are not the subject of the court proceeding
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under this Agreement.
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7.4 Waiver and Severability. The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the
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waiver of any other or subsequent breach or default. All terms and provisions of this Agreement shall, if possible, be construed in
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a manner which makes them valid, but in the event any term or provision of this Agreement is found by a court of competent
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jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected
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if the illegal or unenforceable provision does not materially affect the intent of this Agreement. If the illegal or unenforceable
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provision materially affects the intent of the parties to this Agreement, then this Agreement shall be terminated accordingly.
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7.5 Injunctive Relief. Licensee hereby acknowledges that its breach of this Agreement would cause irreparable harm and
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significant injury to Amlogic that may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, Licensee
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agrees that Amlogic shall have the right to seek and obtain immediate injunctive relief to enforce the terms and obligations under
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this Agreement in addition to any other rights and remedies it may have at law or in equity.
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7.6 Export Regulations. Licensee agrees and warrants that it shall comply, at its own expense, with the US Foreign Corrupt
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Practices Act and all export laws, restrictions, national security controls and regulations of the United States, PRC and any applicable
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foreign agency or authority. Licensee shall not export or re-export, or authorize the export or re-export of the Software or any other
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product, technology, or information that Licensee obtains or learns hereunder, or any copy or direct product thereof, in violation of
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any of such laws, restrictions, or regulations or without any license or approval required thereunder. Any and all obligations of Amlogic
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to provide Software or any media in which the Software is contained shall be subject in all respects to such laws, restrictions, and
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regulations. Licensee hereby agrees to indemnify and hold Amlogic harmless from and against any losses, damages, penalties or
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causes of action resulting from Licensee’s breach of this Section.
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7.7 Entire Agreement. This Agreement, along with any associated Software Description Forms, sets forth the complete and
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exclusive understanding between the parties regarding the subject matter of this Agreement, and supersedes any and all prior
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agreements and communications, oral or written. This Agreement means, collectively, the referenced Software License Agreement
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and all Software Description Forms referencing the Software License Agreement. Any modification or amendment of any provision
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of this Agreement will be effective only if in writing and signed by both parties. In the event of a conflict between the terms of this
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Agreement and the terms of a Software Description Form, the terms of the Software Description Form shall control. This Agreement
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is in the English language and may be translated to Chinese; the English version will prevail in the event of any inconsistency between
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the English and any Chinese translations thereof. This Agreement may be executed in one or more counterparts, each of which shall
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be deemed an original, but all of which taken together shall constitute one and the same instrument. Facsimile, electronic or digital
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signatures shall constitute an original signature for all purposes.
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