Flashmedia Driver Software License Agreement
(Version 1 as of 27 March 2006)
IMPORTANT - PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT. AFTER YOU READ THIS LICENSE AGREEMENT, YOU WILL BE ASKED WHETHER YOU ACCEPT AND AGREE TO THE TERMS OF THIS LICENSE AGREEMENT. DO NOT CLICK " I HAVE READ AND AGREE " UNLESS: (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS LICENSE AGREEMENT ON BEHALF OF (I) IN THE CASE OF AN INDIVIDUAL, YOURSELF AND (II) IN THE CASE OF AN ENTITY, YOURSELF AND YOUR COMPANY; AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS LEGALLY BINDING AGREEMENT ON BEHALF OF (I) IN THE CASE OF AN INDIVIDUAL, YOURSELF AND (II) IN THE CASE OF AN ENTITY, YOURSELF AND YOUR COMPANY.
Important - Read carefully: This Flashmedia driver software license agreement ( " Agreement " ) is a legal agreement between you (either an individual or entity) and Texas Instruments Incorporated ( " TI " ). The " Licensed Materials " subject to this Agreement include the software programs TI has granted you access to download and any " on-line " or electronic documentation associated with these programs, or any portion thereof, as well as any updates or upgrades to such software programs and documentation, if any, or any portion thereof, provided to you at TI's sole discretion. The Licensed Materials are specifically designed and licensed to enable the use of Flashmedia with a system that incorporates PCI devices manufactured by or for TI ( " TI Devices " ). By installing, copying or otherwise using the Licensed Materials you agree to abide by the following provisions. This Agreement is displayed for you to read prior to using the Licensed Materials. If you choose not to accept or agree with these provisions, do not download or install the Licensed Materials.
1. License Grant and Use Restrictions.
a. Limited Object Code License. Subject to the terms of this Agreement, TI hereby grants to you a non-exclusive, non-transferable, non-assignable, non-sublicensable worldwide license to make copies and use internally the Licensed Materials for the sole purpose of enabling the use of Flashmedia (such as Memorystick, Memorystick Pro, Multimedia Card, Secure Digital, Smartmedia, SDIO and XD) in Your Products. For purposes of this Agreement, " Your Product " means a product that (i) consists of both hardware and software components, including executable only versions of the Licensed Materials, or any derivative thereof, that execute solely and exclusively in conjunction with TI Devices and not on devices manufactured by or for an entity other than TI, (ii) uses Flashmedia; and (iii) is sold by or for you bearing your brand name and part number.
b. Distribution License. Subject to the terms of this Agreement, TI hereby grants to you a non-exclusive, non-transferable, non-assignable, non-sublicensable worldwide license to make, use, sell, offer to sell, import, export and otherwise distribute executable copies of the Licensed Materials to end-users of Your Products solely for use in conjunction with Your Products, provided that (i) such executable copies of the Licensed Materials execute solely and exclusively with TI Devices and (ii) you distribute such Licensed Materials pursuant to an enforceable written or " clickwrap " license agreement, with terms and conditions no less restrictive than the terms and conditions of this Agreement, and that includes a covenant that prohibits the end-user of Your Products from distributing the Licensed Materials to any person for any purpose other than to install and use such Licensed Materials on Your Product with which such Licensed Materials were received; and which license requires each end-user to sign or, if applicable, click " I have read and agree " prior to downloading or installing the Licensed Materials.
c. Limited License to TI and Covenant not to Sue. Continuing for the term of this Agreement, you hereby grant to TI under any of your patents embodied in the Licensed Materials a non-transferable, non-exclusive, non-assignable, worldwide, fully paid-up, royalty-free license to make, use, sell, offer to sell, import, export and otherwise distribute such Licensed Materials. You covenant not to sue or otherwise assert Derived Patents against TI and TI's affiliates and their licensees of the Licensed Materials. In the event you assign a Derived Patent, you shall require as a condition of any such assignment that the assignee agree to be bound by the provisions in this Section 1(d) with respect to such Derived Patent. Any attempted assignment or transfer in violation of this Section 1(d) shall be null and void. For purposes of this Agreement, " Derived Patents " means any of your patents issuing from a patent application that discloses and claims an invention conceived of by you after delivery of the Licensed Materials, and derived by you from your access to the Licensed Materials.
d. No Other License. Notwithstanding anything to the contrary, nothing in this Agreement shall be construed as a license to any intellectual property rights of TI other than those rights embodied in the Licensed Materials provided to you by TI. EXCEPT AS PROVIDED HEREIN, NO OTHER LICENSE, EXPRESS OR IMPLIED, BY ESTOPPEL OR OTHERWISE, TO ANY OTHER TI INTELLECTUAL PROPERTY RIGHTS IS GRANTED HEREIN.
e. Restrictions. You shall not use the Licensed Materials, or any modification or derivative thereof, with a processing device manufactured by or for an entity other than TI, and you agree that any such unauthorized use of the Licensed Materials is a material breach of this Agreement. Except as otherwise expressly provided in this Agreement, you will not sublicense, transfer, or assign the Licensed Materials or your rights under this Agreement to any third party. You shall not (i) incorporate, combine, or distribute the Licensed Materials, or any derivative thereof, with any Public Software, or (ii) use Public Software in the development of any derivatives of the Licensed Materials, each in such a way that would cause the Licensed Materials, or any derivative thereof, to be subject to all or part of the license obligations or other intellectual property related terms with respect to such Public Software, including but not limited to, the obligations that the Licensed Materials, or any derivative thereof, incorporated into, combined, or distributed with such Public Software (x) be disclosed or distributed in source code form, be licensed for the purpose of making derivatives of such software, or be redistributed free of charge, contrary to the terms and conditions of this Agreement, (y) be used with devices other than TI Devices, or (z) be otherwise used or distributed in a manner contrary to the terms and conditions of this Agreement. As used in this Section 1(f), " Public Software " means any software that contains, or is derived in whole or in part from, any software distributed as open source software, including but not limited to software licensed under the following or similar models: (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 Standards Source License (SISL), (G) the Apache Server license, (H) QT Free Edition License, (I) IBM Public License, and (J) BitKeeper.
f. Termination. This Agreement is effective until terminated. You may terminate this Agreement at any time by written notice to TI. Without prejudice to any other rights, if you fail to comply with the terms of this Agreement, TI may terminate your right to use the Licensed Materials, or any derivative thereof, and any applications generated using the Licensed Materials, or any derivative thereof. Upon termination of this Agreement, you will destroy any and all copies of the Licensed Materials, including any derivatives thereof, in your possession, custody or control and provide to TI a written statement signed by your authorized representative certifying such destruction.
2. Licensed Materials Ownership. The Licensed Materials are licensed, not sold to you, and can only be used in accordance with the terms of this Agreement. Subject to the licenses granted to you pursuant to this Agreement, TI and its licensors own and shall continue to own all right, title, and interest in and to the Licensed Materials, including all copies thereof. The parties agree that all fixes, modifications and improvements to the Licensed Materials conceived of or made by TI that are based, either in whole or in part, on your feedback, suggestions or recommendations are the exclusive property of TI and all right, title and interest in and to such fixes, modifications or improvements to the Licensed Materials will vest solely in TI. You acknowledge and agree that regardless of the changes made to the Licensed Materials, your right to use any and all derivatives of the Licensed Materials shall remain subject to the terms and conditions of this Agreement. Moreover, you acknowledge and agree that when your independently developed software or hardware components are combined, in whole or in part, with the Licensed Materials, or any derivative thereof, your right to use the Licensed Materials, or any derivative thereof, embodied in such resulting combined work shall remain subject to the terms and conditions of this Agreement.
3. Intellectual Property Rights. The Licensed Materials contain copyrighted material, trade secrets and other proprietary information of TI and its licensors and are protected by copyright laws, international copyright treaties, and trade secret laws, as well as other intellectual property laws. To protect TI's and its licensors' rights in the Licensed Materials you agree not to " unlock " , decompile, reverse engineer, disassemble or otherwise translate any such object code portions of the Licensed Materials to a human-perceivable form nor to permit any person or entity to do so. You shall not remove, alter, cover, or obscure any confidentiality, trade secret, proprietary, or copyright notices, trade-marks, proprietary, patent, or other identifying marks or designs from any component of the Licensed Materials and you shall reproduce and include in all copies of the Licensed Materials the copyright notice(s) and proprietary legend(s) of TI and its licensors as they appear in the Licensed Materials. TI reserves all rights not specifically granted under this Agreement.
The Licensed Materials are based on industry recognized standards, including specifically the Sony MemoryStick, SD/MMC, XD and Smartmedia standards, and software programs published by industry recognized standards bodies and certain third parties claim to own patents, copyrights, and other intellectual property rights that cover implementation of those standards. You acknowledge and agree that this Agreement does not convey a license to any such third party patents, copyrights, and other intellectual property rights and that you are solely responsible for any patent, copyright, or other intellectual property right claims that relate to your use and distribution of the Licensed Materials, or any derivative thereof, and your use and distribution of Your Products that include or incorporate the Licensed Materials, or any derivative thereof.
4. Confidential Information. You acknowledge and agree that the Licensed Materials, and any derivative thereof, contain trade secrets and other confidential information of TI. You agree to use the Licensed Materials, or any derivative thereof, solely within the scope of the licenses set forth herein, to employ reasonable security precautions to maintain such trade secrets and confidential information in strict confidence, and to prevent disclosure of the Licensed Materials, or any derivative thereof, to any third party, except as may be necessary and required in connection with your rights and obligations hereunder. You agree to obtain executed confidentiality agreements with your employees having access to the Licensed Materials, or any derivative thereof, and to diligently take steps to enforce such agreements in this respect. TI agrees that the employment agreements used in the normal course of your business shall satisfy the requirements of this section. TI may disclose your contact information to TI's applicable licensors.
5. Warranties and Limitations. THE LICENSED MATERIALS ARE PROVIDED " AS IS " . TI MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED MATERIALS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS. YOU AGREE TO USE YOUR INDEPENDENT JUDGMENT IN DEVELOPING YOUR PRODUCTS AND DERIVATIVES OF THE LICENSED MATERIALS.
IN NO EVENT SHALL TI, OR ANY APPLICABLE LICENSOR, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF, REGARDLESS OF WHETHER TI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF USE OR INTERRUPTION OF BUSINESS. IN NO EVENT WILL TI'S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF YOUR USE OF THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF, EXCEED THE GREATER OF FIVE HUNDRED U.S. DOLLARS (US$500) OR THE FEES PAID TO TI BY YOU FOR THE LICENSED MATERIALS UNDER THIS AGREEMENT.
Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages or limitation on how long an implied warranty lasts, the above limitations or exclusions may not apply to you.
6. Indemnification Disclaimer. YOU ACKNOWLEDGE AND AGREE THAT TI SHALL NOT BE LIABLE FOR AND SHALL NOT DEFEND OR INDEMNIFY YOU AGAINST ANY THIRD PARTY INFRINGEMENT CLAIM THAT RELATES TO OR IS BASED ON YOUR MANUFACTURE, USE, OR DISTRIBUTION OF THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF, OR YOUR MANUFACTURE, USE, OFFER FOR SALE, SALE, IMPORTATION OR DISTRIBUTION OF YOUR PRODUCTS THAT INCLUDE OR INCORPORATE THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF.
7. No Technical Support. TI is under no obligation to install, maintain or support the Licensed Materials.
8. Export Control. You hereby acknowledge that the Licensed Materials are subject to export control under the U.S. Commerce Department's Export Administration Regulations ( " EAR " ). You further hereby acknowledge and agree that unless prior authorization is obtained from the U.S. Commerce Department, neither you nor your customers will export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the EAR), received from TI, or export, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export, or release of the technology, software, or software source code, or direct product is prohibited by the EAR. You agree that none of the Licensed Materials may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria or any other country the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Denied Person List or Entity List. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you will not use or transfer the Licensed Materials for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license.
9. Governing Law and Severability. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without reference to conflict of laws principles. If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). The parties agree that non-exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the courts located in the State of Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and either party may seek injunctive relief in any United States or foreign court.
10. Entire Agreement. This is the entire Agreement between you and TI and supersedes any prior agreement between the parties related to the subject matter of this Agreement. Notwithstanding the foregoing, any signed and effective software license agreement relating to the subject matter hereof will supersede the terms of this Agreement. No amendment or modification of this Agreement will be effective unless in writing and signed by a duly authorized representative of TI. You hereby warrant and represent that you have obtained all authorizations and other applicable consents required empowering you to enter into this Agreement.