| SOFTWARE LICENSE AGREEMENT |
| |
| |
| This Software License Agreement (the "Agreement") is entered into as of August 10, 2017 (the |
| "Effictive Date"), by and between AMLOGIC (CA) CO., INC., with principal office at 2518 |
| Mission College Blvd., Suite 120, Santa Clara, CA 95054, USA ("Amlogic"), with a place of business |
| at 1600 Amphitheatre Parkway, Mountain View, California 94043, USA ("Licensee"). The parties |
| agree as follows: |
| |
| 1. DEFINITIONS. |
| |
| 1.1 "Authorized Location" shall mean the location set forth in the applicable |
| Software Description Form in the form attached hereto as Exhibit A, or if none is listed, then the |
| address for Licensee set forth above. |
| |
| 1.2 "Authorized Licensee Product" means the specific product listed in the |
| applicable Software Description Form, or if none is listed, then any system level product sold by |
| Licensee that incorporates the Amlogic Product and the Software or Derivative Work and |
| includes other hardware and software provided by Licensee. |
| |
| 1.3 "Amlogic Product" means any of the proprietary integrated circuit |
| product(s) sold by Amlogic with which the Software was designed to be used. |
| |
| 1.4 "Derivative Work" means any discrete modification to the Software made |
| by Licensee pursuant to this agreement and any modified, altered, enhanced or adapted version |
| of the Software, or derivative work thereof (as that term is defined under United States copyright |
| law) based on the Software. |
| |
| 1.5 "End User Agreement" means a written, legally enforceable agreement |
| that (i) stipulates that the Software is licensed, not sold, and that title to and ownership of the |
| Software and any portion thereof remain with Amlogic or its licensors; (ii) disclaims all express |
| and implied warranties on behalf of Amlogic, and exclude liability of Amlogic and its licensors |
| for any special, indirect, exemplary, incidental or consequential damages; and (iii) prohibits the |
| end user from (a) copying the Software, except as reasonably necessary for internal back-up |
| purposes, (b) using andlor transferring the Software to any third party apart from a Authorized |
| Licensee Product, (c) modifying the Software, (d) attempting to reverse engineer, decompile or |
| disassemble any portion of the Software, or (e) exporting the Software or any underlying |
| technology in contravention of any applicable U.S. or foreign export laws and regulations. |
| |
| 1.6 "Object Code" means those portions of the Software, if any, furnished to |
| Licensee in object code or machine readable form, including, without limitation, any bit images |
| or other binary files for FPGAs. |
| |
| 1.7 "Software" shall mean that software provided by Amlogic to Licensee |
| from time to time and which is described in a Software Description Form executed by the parties |
| that references this Agreement. |
| 1.8 "Source Code" means those portions ofthe Software, if any, furnished to |
| Licensee in source code or human readable form, including, without limitation, any Verilog, |
| HTL or RTL code. |
| |
| 2. LICENSEE GRANT; OWNERSHIP. |
| |
| 2.1 License Grants. Subject to the terms and conditions of this Agreement, |
| Amlogic hereby grants to Licensee, under all of Amlogic' s intellectual property rights in and to |
| the Software, a limited, non-exclusive, non-transferable, royalty-free license (i) to use, modify |
| and create Derivative Works from the Source Code, and to use the Object Code, without right to |
| sublicense, solely at the Authorized Location, solely for the purpose of incorporating the |
| Software or Derivative Works in Authorized Licensee Products for use solely with the Amlogic |
| Product, and only if in compliance with Section 2.2 below; and (ii) to reproduce, distribute and |
| sublicense, in object code form only, copies ofthe Software or Derivative Works only to be |
| incorporated in Authorized Licensee Products for use solely with the Amlogic Product to |
| resellers, distributors and end users of such Authorized Licensee Products, and only if in |
| compliance with Section 2.3 below. |
| |
| 2.2 Restriction on Modification. If and to the extent that the Software is |
| designed to be compliant with any published standard (including, without limitation, DOCSIS, |
| HomePNA, IEEE, and ITU standards), Licensee may not make any modifications to the |
| Software that would cause the Software or the accompanying Amlogic Products to be |
| incompatible with such standard. |
| |
| 2.3 Restriction on Distribution. Licensee shall only distribute the Software |
| or Derivative Works to resellers, distributors and end users either (a) physically embedded in the |
| Authorized Licensee Products in a manner that is not readily accessible to end users; or |
| (b) pursuant to an End User Agreement. By way of example only, an End User Agreement shall |
| be required to distribute the Software or Derivative Works on a CD-ROM, floppy disk, or by |
| electronic transmission. |
| |
| 2.4 Proprietary Notices. Licensee shall not remove, efface or obscure any |
| copyright or trademark notices from the Software or Derivative Work. Licensee shall include |
| reproductions of the Amlogic copyright notice with each copy of the Software and any |
| Derivative Work, except where such Software is embedded in a manner not readily accessible to |
| the end user. Licensee acknowledges that any symbols, trademarks, tradenames, and service |
| marks adopted by Amlogic to identify the Software or otherwise, belong to Amlogic and that |
| Licensee shall have no rights therein. |
| |
| 2.5 Ownership. Amlogic shall retain all right, title and interest, including all |
| intellectual property rights, in and to the Software. Licensee hereby irrevocably assigns and |
| agrees to assign to Amlogic all right, title and interest in and to the Derivative Works. Licensee |
| agrees to perform all acts deemed reasonably necessary or desirable by Amlogic to permit and |
| assist Amlogic, at Amlogic's expense, to obtain and enforce the full benefits throughout the |
| world of Licensee's assignment of all right, title and interest in the Derivative Works to the |
| Software and all related intellectual property rights to Amlogic, including but not limited to |
| execution of documents and assistance or cooperation in the registration and enforcement of any |
| such intellectual property rights throughout the world. If Amlogic is unable for any reason |
| |
| |
| 2 |
| |
| whatsoever to secure Licensee's signature to any document Licensee is required to execute |
| pursuant to the foregoing, Licensee hereby irrevocably designates and appoints Amlogic and its |
| duly authorized officers and agents, as their agents and attorneys-in-fact to act for and in its |
| behalf and instead of Licensee, to execute and file any such document and to do all other |
| lawfully permitted acts to further the purposes of the foregoing with the same legal force and |
| effect as if executed by Licensee. The foregoing is deemed a power coupled with an interest and |
| is irrevocable. Notwithstanding the foregoing or any other provision of this Agreement, nothing |
| contained herein shall be construed as granting Amlogic any right, title or interest in or to any of |
| Licensee's intellectual property or Confidential Information. |
| |
| 2.6 Third Party Software. The Software is distributed to Licensee in |
| aggregation with various third party software ("Open Source Software"). The Open Source |
| Software is distributed to Licensee under the terms ofvarious "open source tl license agreements |
| which are incorporated herein by reference. Please review |
| http://openlinux.amlogic.com/wikilindex.php/AlTI1/Android/3.0Third |
| Party Libraries and Open Source License Agreements for these notices and requirements. |
| Licensee agrees to comply with terms and conditions contained in all such Open Source |
| Software licenses with respect to the applicable Open Source Software. |
| |
| 2.7 No Other Rights Granted. Apart from the license rights expressly set |
| forth in this Agreement, Amlogic does not grant and Licensee does not receive any ownership |
| right, title or interest nor any security interest or other interest in any intellectual property rights |
| relating to the Software, nor in any copy of any part of the foregoing. Licensee shall not use, |
| license, sell or otherwise distribute the Software or any Derivative Work except as provided in |
| this Agreement, and shall not, directly or indirectly, reverse engineer, decompile or disassemble |
| any portion of the Object Code (or attempt to do so). |
| |
| 2.8 Fees. In consideration of the licenses granted hereunder, Licensee shall |
| pay to Amlogic the fees according to the terms set forth on the Software Description Form, if |
| applicable. If the Software Description Form does not include payment terms, all payments |
| under this Agreement shall be made within thirty (30) days of the invoice date. Licensee shall |
| pay any taxes, duties or charges of any kind (including any sales, withholding or value added |
| taxes) imposed by any federal, state or local governmental entity for products or services |
| provided under this Agreement excluding only taxes based solely on Amlogic's net income. If all |
| or any part of any payment owed to Amlogic under this Agreement is withheld, based upon a |
| claim that such withholding is required pursuant to the tax laws of any country or its political |
| subdivisions andlor any tax treaty between the U.S. and any such country, such payment shall be |
| increased by the amount necessary to result in a net payment to Amlogic of the amounts |
| otherwise payable under this Agreement. Any amounts due under this Agreement which are not |
| paid within thirty (30) calendar days of their due date shall be subject to a late payment charge of |
| the lower of: (i) one and one half percent (1.5%) per month (and shall thereafter bear interest at a |
| rate of eighteen percent (18%) per annum until paid); and (ii) the highest interest rate permitted |
| by applicable law. Each party is responsible for its own expenses under this Agreement. All |
| fees payable under this Agreement are non-refundable. |
| |
| |
| 3 |
| |
| 3. NO WARRANTY OR SUPPORT. |
| |
| 3.1 No Warranty. THE SOFTWARE IS PROVIDED "AS IS," AND WITH |
| ALL FAULTS. AMLOGIC PROVIDESNO WARRANTIES OF ANY KIND, WHETHER |
| EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION, COURSE OF DEALING OR |
| CONDUCT WITH LICENSEE, OR OTHERWISE. AMLOGIC SPECIFICALLY DISCLAIMS |
| ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FORA SPECIFIC |
| PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY |
| UPGRADES TO OR DOCUMENTATION FOR THE SOFTWARE. WITHOUT |
| LIMITATION OF THE ABOVE, AMLOGIC GRANTS NO WARRANTY THAT THE |
| SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND |
| GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM |
| INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR |
| RELIABILITY. |
| |
| 3.2 No Support. Nothing in this Agreement shall obligate Amlogic to |
| provide any support for the Software. Amlogic may, but shall be under no obligation to, correct |
| any defects in the Software and/or provide updates to licensees of the Software. Licensee shall |
| make reasonable efforts to promptly report to Amlogic any defects it finds in the Software, as an |
| aid to creating improved revisions of the Software. |
| |
| 3.3 End User Support. Licensee shall, at its own expense, be solely |
| responsible for providing technical support and training to its customers for Authorized Licensee |
| Products, and Amlogic shall have no obligation with respect thereto. Licensee shall be solely |
| responsible for, and Amlogic shall have no obligation to honor, any warranties that Licensee |
| provides to its customers or to end users with respect to the Software or Derivative Works. |
| Licensee shall defend any claim against Amlogic arising in connection with any such warranties, |
| express, implied, statutory, or otherwise, and shall pay any settlements or damages awarded |
| against Amlogic that are based on any such warranties. |
| |
| 4. TERM AND TERMINATION. |
| |
| 4.1 Term and Termination. This Agreement shall become effective on the |
| date first set forth above and shall remain in effect perpetually unless terminated as provided |
| below. If Licensee defaults in a material obligation under this Agreement, and if the default is |
| curable, also fails to cure such default thirty (30) days after written notice of such default, |
| Amlogic may immediately terminate and cancel this Agreement and the licenses granted |
| hereunder upon written notice to Licensee. Licensee may terminate this Agreement at any time |
| upon written notice to Amlogic and fulfillment of its obligations under Section 4.2 herein. |
| |
| 4.2 Effect of Termination. Upon any termination of this Agreement, the |
| rights and licenses granted to Licensee under this Agreement shall immediately terminate; |
| provided, however, that sublicenses of the Software or Derivative Works in Object Code format, |
| to the extent validly granted to end users pursuant to Section 2.1(ii) prior to termination of this |
| Agreement, shall survive such termination subject to compliance with the obligations set forth |
| herein. Upon termination, Licensee shall ship to Amlogic, within thirty (30) days, all tangible |
| items in its possession or control which are proprietary to Amlogic; and Licensee shall destroy or |
| |
| |
| 4 |
| |
| return to Amlogic, at Amlogic's option, all copies of the Software and Derivative Works |
| (including, without limitation, Source Code) in its possession or control. |
| |
| 4.3 Survival. The provisions of Sections 1,2.2,2.3,2.4,2.5,2.6,2.7,3,4,5, |
| 6 and 7 shall survive the termination of this Agreement. |
| |
| S. CONFIDENTIALITY. |
| |
| 5.1 Existing NDA (if Applicable). If Amlogic and Licensee already have put |
| in place a non-disclosure agreement that would protect communications made under this |
| Agreement (the "NDA"), then all such communications shall be subject to the terms and |
| conditions of such NDA, which the parties acknowledge is in full force and effect. The parties |
| agree that the Software, Object Code, Source and any accompanying documentation will be |
| considered Confidential Information under the NDA. In the event of a conflict between the |
| terms of this Agreement and the terms of the NDA, the terms of this Agreement will prevail. |
| |
| 5.2 Obligations if No NDA Exists. If no NDA exists, then the following |
| terms shall apply: Licensee acknowledges and agrees that the Software, Object Code, Source |
| Code, any accompanying documentation, and any other information (if such other information is |
| identified as confidential or should be recognized as confidential under the circumstances) |
| provided to Licensee by Amlogic hereunder (collectively, "Confidential Information") constitute |
| the confidential and proprietary information of Amlogic, and that Licensee's protection thereof is |
| an essential condition to Licensee's use and possession of the Confidential Information. |
| Licensee shall retain all Confidential Information in strict confidence and not disclose it to any |
| third party or use it in any way except as permitted by this Agreement without Amlogic's express |
| written consent. Licensee will exercise at least the same amount of diligence in preserving the |
| secrecy of the Confidential Information as it uses in preserving the secrecy ofits own most |
| valuable confidential information, but in no event less than reasonable diligence. The |
| prohibitions contained in this Section 5.2 preclude dissemination of Confidential Information to |
| Licensee's subsidiaries, affiliates, contractors or subcontractors, except in the event of a |
| permitted assignment pursuant to Section 7.1. Information shall not be considered Confidential |
| Information if and to the extent that it: (i) was in the public domain at the time it was disclosed |
| or has entered the public domain through no fault of Licensee; (ii) was known to Licensee, |
| without restriction, at the time of disclosure as proven by the files of Licensee in existence at the |
| time of disclosure; or (iii) becomes known to Licensee, without restriction, from a source other |
| than Amlogic without breach of this Agreement by Licensee and otherwise not in violation of |
| Amlogic's rights. Because of the unique and valuable nature of the Confidential Information, |
| Licensee acknowledges and agrees that Amlogic will suffer irreparable harm in the event that the |
| Licensee fails to comply with any of its obligations herein and that monetary damages will be |
| inadequate to compensate Amlogic for such breach. Accordingly, Amlogic and Licensee agree |
| that Amlogic will, in addition to any other remedies available at law or in equity, be entitled to |
| obtain injunctive relief to enforce the terms of this Agreement. |
| |
| 5.3 Source Code Protection. Licensee shall not under any circumstances |
| copy, duplicate or otherwise reproduce the Source Code in any manner except as provided |
| herein. Licensee is granted the right to make one (1) archival or backup copy ofthe Source |
| Code, which shall be marked as an archival copy and as the confidential and proprietary property |
| of Amlogic to which access is restricted. Licensee agrees to inform all employees and |
| |
| |
| 5 |
| |
| contractors who are given access by Licensee to the Software, including the Source Code, the |
| Object Code, or any accompanying documentation, that such materials are confidential and trade |
| secrets of Amlogic licensed to Licensee as such. |
| |
| 6. LIMITATION OF LIABILITY. |
| |
| EXCEPT FOR A BREACH BY LICENSEE OF SECTION 2 (LICENSE GRANT; |
| OWNERSHIP) OR A BREACH BY EITHER PARTY OF SECTION 5 (CONFIDENTIALITY), |
| IN NO EVENT SHALL LICENSEE, AMLOGIC OR ANY OF AMLOGIC'S LICENSORS |
| HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR |
| CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF |
| LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING |
| NEGLIGENCE) OR OTHER WISE, ARISING OUT OF THIS AGREEMENT, INCLUDING |
| BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN |
| ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL |
| APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY |
| LIMITED REMEDY. |
| |
| IN NO EVENT SHALL AMLOGIC BE LIABLE FOR ANY AMOUNT EXCEEDING THE |
| GREATER OF ONE HUNDRED DOLLARS AND THE AMOUNTS PAID BY CUSTOMER |
| TO AMLOGIC HEREUNDER. |
| |
| 7. MISCELLANEOUS. |
| |
| 7.1 Assignment. This Agreement shall be binding upon and inure to the |
| benefit ofthe parties and their respective successors and assigns, provided, however that |
| Licensee may not assign this Agreement or any rights or obligation hereunder, directly or |
| indirectly, by operation of law or otherwise, without the prior written consent ofAmlogic, and |
| any such attempted assignment shall be void. Notwithstanding the foregoing, Licensee may |
| assign this Agreement to a successor to all or substantially all of its business or assets to which |
| this Agreement relates that is not a competitor of Amlogic. |
| |
| 7.2 Notices. All notices between the parties shall be in writing and shall be |
| deemed to have been given if personally delivered or sent by certified mail (return receipt |
| requested), or telecopy, to the other party's legal department at the address set forth in this |
| Agreement, and for Amlogic to Attn: Legal Department, Amlogic, Inc. 2518 Mission College |
| Blvd, Suite 120, Santa Clara CA, 95054, USA and such other address as is provided by notice as |
| set forth herein. Notices shall be deemed effective upon receipt if personally delivered, three (3) |
| business days after it was sent if by certified mail, or one (1) business day after it was sent if by |
| telecopier. |
| |
| 7.3 Governing Law; Venue. This Agreement shall be governed by the laws |
| of California without regard to any conflict-of-Iaws rules, and the United Nations Convention on |
| Contracts for the International Sale of Goods is hereby excluded. The sole jurisdiction and |
| venue for actions related to the subject matter hereof shall be the state and federal courts located |
| in the County of Santa Clara, California, and both parties hereby consent to such jurisdiction and |
| venue. |
| |
| |
| 6 |
| |
| 7.4 Severability. All terms and provisions ofthis Agreement shall, if |
| possible, be construed in a manner which makes them valid, but in the event any term or |
| provision of this Agreement is found by a court of competent jurisdiction to be illegal or |
| unenforceable, the validity or enforceability of the remainder of this Agreement shall not be |
| affected if the illegal or unenforceable provision does not materially affect the intent ofthis |
| Agreement. If the illegal or unenforceable provision materially affects the intent of the parties to |
| this Agreement, this Agreement shall become terminated. |
| |
| 7.5 Equitable Relief. Licensee hereby acknowledges that its breach of this |
| Agreement would cause irreparable harm and significant injury to Amlogic that may be difficult |
| to ascertain and that a remedy at law would be inadequate. Accordingly, Licensee agrees that |
| Amlogic shall have the right to seek and obtain immediate injunctive relief to enforce obligations |
| under the Agreement in addition to any other rights and remedies it may have. |
| |
| 7.6 Export Regulations. Licensee agrees and warrants that it shall comply, at |
| its own expense, with the U.S. Foreign Corrupt Practices Act and all export laws, restrictions, |
| national security controls and regulations of the United States and any applicable foreign agency |
| or authority. Licensee shall not export or re-export, or authorize the export or re-export of the |
| Software or any other product, technology, or information that Licensee obtains or learns |
| hereunder, or any copy or direct product thereof, in violation of any of such laws, restrictions, or |
| regulations or without any license or approval required thereunder. Any and all obligations of |
| Amlogic to provide Software or any media in which the Software is contained shall be subject in |
| all respects to such laws, restrictions, and regulations. |
| |
| 7.7 Waiver. The waiver of, or failure to enforce, any breach or default |
| hereunder shall not constitute the waiver of any other or subsequent breach or default. |
| |
| 7.8 Entire Agreement. This Agreement, along with any associated Software |
| Description Forms, sets forth the entire Agreement between the parties and supersedes any and |
| all prior proposals, agreements and representations between them, whether written or oral. This |
| Agreement may be changed only by mutual agreement of the parties in writing. In the event of |
| a conflict between the terms of this Agreement and the terms of a Software Description Form, |
| the term of the Software Description Form will prevail. |
| |