The use of the Software, as defined herein, is exclusively governed by the terms of this limited use license agreement (the “Agreement”), effective as of the Effective Date defined below, by and between MARVELL INTERNATIONAL LTD., a Bermuda corporation with its principal place of business at Argyle House, 41A Cedar Avenue, Hamilton, HM 12, Bermuda (“Marvell”), and LICENSEE. By downloading, installing or using the Software, Licensee accepts the terms of this Agreement. If Licensee does not agree to all of the terms of this Agreement, then Licensee must not download, install or use the Software. Licensee and Marvell are each a “party” and, collectively, are the “parties” to this Agreement. BY SELECTING THE “ACCEPT” OPTION BELOW, LICENSEE SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (“ACCEPTANCE”), AND THIS AGREEMENT SHALL BECOME EFFECTIVE UPON THE DATE OF SUCH ACCEPTANCE BY LICENSEE (THE “EFFECTIVE DATE”). FOR AVOIDANCE OF DOUBT, IT SHALL NOT BE A REQUIREMENT TO THE EFFECTIVENESS AND ENFORCEABILITY OF THIS AGREEMENT THAT MARVELL EXECUTE THIS AGREEMENT.
LICENSE GRANT. Subject to the terms of this Agreement, Marvell International Ltd. ("Marvell") hereby grants Licensee and only Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license ("License") to use the software that Licensee has downloaded or is about to install (collectively, "Software") only for Licensee's personal, non-commercial internal use for evaluation purposes and only in accordance with any documentation that accompanies the Software. Licensee may download, install and use on a single device (e.g. personal computer, personal digital assistant, or mobile phone). Licensee has no right to receive, use or examine any source code or design documentation relating to the Software.
LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software, except where the foregoing is required by applicable statutory law, and then only to the extent so required; (iii) rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software on behalf of any third party or for any commercial purpose; (iv) incorporate into or with other software (except as specified in the applicable user documentation provided by Marvell) or create a derivative work of any part of the Software; or (v) use the Software for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and Licensee will not publish any such performance information or comparisons). Licensee shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies or portions thereof, shall remain in Marvell and its suppliers or licensors. Licensee understands that Marvell may modify or discontinue offering the Software at any time. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give Licensee any rights not expressly granted herein. This License does not constitute a sale of the Software or any portion or copy of it.
USE OF THIS PRODUCT IN ANY MANNER THAT COMPLIES WITH THE MPEG-4 VISUAL STANDARD IS PROHIBITED, EXCEPT FOR USE DIRECTLY RELATED TO (A) DATA OR INFORMATION ENCODED BY A CONSUMER FOR PERSONAL AND NON-COMMERCIAL USE WITHOUT REMUENERATION; AND (B) OTHER USES SPECIFICALLY AND SEPARATELY LICENSED BY MPEG LA, L.L.C.
THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL AND NONCOMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD ("AVC VIDEO") AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM
INTELLECTUAL PROPERTY; CONTENT. As a condition to Licensee's use of the Software, Licensee represents, warrants and covenants that Licensee will not use the Software: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate information or materials in any form or format ("Content") that Licensee should know is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable community standards; or (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Licensee, not Marvell, remains solely responsible for all Content that Licensee uploads, posts, e-mails, transmits, or otherwise disseminates using, or in connection with, the Software. Licensee acknowledges that all Content that Licensee accesses using the Software is at Licensee's own risk and Licensee will be solely responsible for any damage to any party resulting therefrom.
SUPPORT AND UPGRADES. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, "Support") from Marvell, unless Licensee makes separate arrangements for Support with Marvell and pays the applicable fees associated with such Support. Any such Support (if any) for the Software that may be made available by Marvell directly or indirectly (e.g., through the manufacturer or distributor of Licensee's PDA or mobile device) to Licensee shall become part of the Software and subject to this Agreement.
INDEMNITY. Licensee agrees that Marvell shall have no liability whatsoever for any use Licensee makes of the Software. Licensee shall indemnify and hold harmless Marvell and Marvell's suppliers from any claims, settlements, damages, liabilities, costs and fees (including reasonable attorney fees) arising from or related to (A) Licensee's use of the Software, (B) any Content and/or any goods or services promoted through any Content, and/or (C) Licensee's failure to comply with any term of this Agreement.
WARRANTY DISCLAIMER. MARVELL PROVIDES THE SOFTWARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. FURTHER, MARVELL DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR THAT THE SOFTWARE OR WRITTEN MATERIALS WILL BE CORRECT, ACCURATE, OR RELIABLE. THE LICENSEE UNDERSTANDS THAT MARVELL IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OTHER THAN MARVELL. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. WITH RESPECT TO ANY SOFTWARE, LICENSEE BEARS THE ENTIRE RISK AS TO QUALITY AND PERFORMANCE. SHOULD THE SOFTWARE PROVE DEFECTIVE FOLLOWING LICENSE, LICENSEE (AND NOT MARVELL) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL MARVELL OR ITS SUPPLIERS (IF ANY) OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE. MARVELL'S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO MARVELL BY LICENSEE HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF MARVELL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
TERMS AND TERMINATION. This Agreement shall continue until terminated as set forth in this section. Licensee may terminate this Agreement at any time. Marvell may terminate this Agreement immediately if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall so certify to Marvell that such actions have occurred. Except for the License and except as otherwise expressly provided herein, the terms of the Agreement shall survive termination.
HIGH RISK USES. The Software is not fault-tolerant and are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance (such as, without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines, or weapons systems) in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, the License excludes any High Risk Activities and Licensee agrees (a) not to use Software with respect to any High Risk Activities and (b) to indemnify Marvell and its licensors from all losses, claims, damages, costs, attorneys' fees and other expenses relating to such High Risk Activities.
GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government or any foreign government shall be governed solely by the terms of this Agreement.
ABILITY TO ACCEPT EULA
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this EULA and to abide by and comply with this EULA. In any case, you affirm that you are over the age of 18, as some content accessed using Marvell products are not intended for children under 18. If you are under 18 years of age, then you may not use Marvell products to access a network.
EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations, including, without limitation, export or re-export to Afghanistan, Balkans, Burma, Cuba, Iran, Iraq, Liberia, North Korea, Serbia, Sudan, Syria, and Zimbabwe and other countries subject to U.S. trade embargoes, parties on the U.S. Export Administration Table of Denial Orders and the U.S. Department of Treasury List of Specially Designated Nationals, and prohibited destinations in any of the Country Groups specified in the then current Supplement No. 1 to Part 740 or the Commerce Control List specified in the then current Supplement No.1 to Part 738 of the U.S. Export Administration Regulations (or any successor supplement or regulations). If Licensee is involved in a transaction that gives Licensee reason to suspect that the Software will be exported, re-exported, or diverted in violation of any such laws, restrictions or regulations (including, without limitation, knowledge of Software end user, abnormal transaction circumstances, and other Bureau of Export Administration "red flag" indicators, then Licensee will take appropriate steps to terminate such transaction, notify the correct U.S. agency, and give notice to Company. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
CONFIDENTIALITY. Except as expressly allowed by this Agreement, Licensee will not use or disclose any Software or related technology, idea, algorithm or information except to the extent Licensee can document that it is generally available for use and disclosure by the public without any charge or license.
MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Marvell to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Marvell's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Marvell's consent and any action or conduct in violation of the foregoing shall be void and without effect. Marvell expressly reserves the right to assign this Agreement without consent and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California; Licensee hereby agrees to service of process in accordance with the rules of such courts.
Last Changed 7/14/2011
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