MICROCHIP IS WILLING TO LICENSE THE ACCOMPANYING SOFTWARE AND DOCUMENTATION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE FOLLOWING TERMS. TO ACCEPT THE TERMS OF THIS LICENSE, CLICK “ACCEPT” AND PROCEED WITH THE DOWNLOAD OR INSTALL. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, CLICK “DECLINE,” AND DO NOT DOWNLOAD OR INSTALL THIS SOFTWARE. BY DOWNLOADING AND INSTALLING THE SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
NON-EXCLUSIVE SOFTWARE LICENSE AGREEMENT FOR ACCOMPANYING MICROCHIP SOFTWARE AND DOCUMENTATION
This Nonexclusive Software License Agreement (“Agreement”) is a contract between you, your heirs, successors and assigns (“Licensee”) and Microchip Technology Incorporated, a Delaware corporation, with a principal place of business at 2355 W. Chandler Blvd., Chandler, AZ 85224-6199, and its subsidiary, Microchip Technology (Barbados) II Incorporated (collectively, “Microchip”) for the accompanying Microchip software including, but not limited to, Graphics Library Software, IrDA Stack Software, MCHPFSUSB Stack Software, Memory Disk Drive File System Software, mTouch(TM) Capacitive Library Software, Smart Card Library Software, TCP/IP Stack Software, MiWi(TM) DE Software, and/or any PC programs and any updates thereto (collectively, the “Software”), and accompanying documentation, including images and any other graphic resources provided by Microchip (“Documentation”).
The Software and Documentation are licensed under this Agreement and not sold. U.S. copyright laws, international copyright treaties, and other intellectual property laws and treaties protect the Software and Documentation. Microchip reserves all rights not expressly granted to Licensee in this Agreement.
(1) Definitions. As used in this Agreement, the following capitalized terms will have the meanings defined below: a. “Microchip Products” means Microchip microcontrollers and Microchip digital signal controllers. b. “Licensee Products” means Licensee products that use or incorporate Microchip Products. c. “Object Code” means the Software computer programming code that is in binary form (including related documentation, if any), and error corrections, improvements, modifications, and updates. d. “Source Code” means the Software computer programming code that may be printed out or displayed in human readable form (including related programmer comments and documentation, if any), and error corrections, improvements, modifications, and updates. e. “Third Party” means Licensee’s agents, representatives, consultants, clients, customers, or contract manufacturers. f. “Third Party Products” means Third Party products that use or incorporate Microchip Products. (2) Software License Grant. Microchip grants strictly to Licensee a non-exclusive, non-transferable, worldwide license to: a. use the Software in connection with Licensee Products and/or Third Party Products;
b. if Source Code is provided, modify the Software, provided that no Open Source Components (defined in Section 5 below) are incorporated into such Software in such a way that would affect Microchip’s right to distribute the Software with the limitations set forth herein and provided that Licensee clearly notifies Third Parties regarding such modifications; c. distribute the Software to Third Parties for use in Third Party Products, so long as such Third Party agrees to be bound by this Agreement (in writing or by “click to accept”) and this Agreement accompanies such distribution; d. sublicense to a Third Party to use the Software, so long as such Third Party agrees to be bound by this Agreement (in writing or by “click to accept”); e. with respect to the TCP/IP Stack Software, Licensee may port the ENC28J60.c, ENC28J60.h, ENCX24J600.c, and ENCX24J600.h driver source files to a non-Microchip Product used in conjunction with a Microchip ethernet controller; f. with respect to the MiWi (TM) DE Software, Licensee may only exercise its rights when the Software is embedded on a Microchip Product and used with a Microchip radio frequency transceiver or UBEC UZ2400 radio frequency transceiver which are integrated into Licensee Products or Third Party Products. For purposes of clarity, Licensee may NOT embed the Software on a non-Microchip Product, except as described in this Section. License Rev. No. 03-060111
(3) Documentation License Grant. Microchip grants strictly to Licensee a non-exclusive, non-transferable, worldwide license to use the Documentation in support of Licensee's authorized use of the Software (4) Third Party Requirements. Licensee acknowledges that it is Licensee’s responsibility to comply with any third party license terms or requirements applicable to the use of such third party software, specifications, systems, or tools. Microchip is not responsible and will not be held responsible in any manner for Licensee’s failure to comply with such applicable terms or requirements. (5) Open Source Components. Notwithstanding the license grant in Section 1 above, Licensee further acknowledges that certain components of the Software may be covered by so-called “open source” software licenses (“Open Source Components”). Open Source Components means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. To the extent required by the licenses covering Open Source Components, the terms of such license will apply in lieu of the terms of this Agreement, and Microchip hereby represents and warrants that the licenses granted to such Open Source Components will be no less broad than the license granted in Section 1. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Components, such restrictions will not apply to such Open Source Component. (6) Licensee Obligations. a. Licensee will ensure Third Party compliance with the terms of this Agreement, and will be liable for any breach of this Agreement committed by such Third Party. b. Licensee will not: (i) engage in unauthorized use, modification, disclosure or distribution of Software or Documentation, or its derivatives; (ii) use all or any portion of the Software, Documentation, or its derivatives except in conjunction with Microchip Products or Third Party Products; or (iii) reverse engineer (by disassembly, decompilation or otherwise) Software or any portion thereof. c. Licensee may not remove or alter any Microchip copyright or other proprietary rights notice posted in any portion of the Software or Documentation. d. Licensee will defend, indemnify and hold Microchip and its subsidiaries harmless from and against any and all claims, costs, damages, expenses (including reasonable attorney's fees), liabilities, and losses, including without limitation product liability claims, directly or indirectly arising from or related to: (i) the use, modification, disclosure or distribution of the Software, Documentation, or any intellectual property rights related thereto; (ii) the use, sale and distribution of Licensee Products or Third Party Products; and (iii) breach of this Agreement. THIS SECTION 3(d) STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY INFRINGEMENT. (7) Confidentiality. Licensee agrees that the Software (including but not limited to the Source Code, Object Code and library files) and its derivatives, Documentation and underlying inventions, algorithms, know-how and ideas relating to the Software and the Documentation are proprietary information belonging to Microchip and its licensors (“Proprietary Information”). Except as expressly and unambiguously allowed herein, Licensee will hold in confidence and not use or disclose any Proprietary Information and will similarly bind its employees and Third Party(ies) in writing. Proprietary Information will not include information that: (i) is in or enters the public domain without breach of this Agreement and through no fault of the receiving party; (ii) the receiving party was legally in possession of prior to receiving it; (iii) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party's Proprietary Information; or (iv) the receiving party receives from a third party without restriction on disclosure. If Licensee is required to disclose Proprietary Information by law, court order, or government agency, License will give Microchip prompt notice of such requirement in order to allow Microchip to object or limit such disclosure. Licensee agrees that the provisions of this Agreement regarding unauthorized use and nondisclosure of the Software, Documentation and related Proprietary Rights are necessary to protect the legitimate business interests of Microchip and its licensors and that monetary damage alone cannot adequately compensate Microchip or its licensors if such provisions are violated. Licensee, therefore, agrees that if Microchip alleges that Licensee or Third Party has breached or violated such provision then Microchip will have the right to petition for injunctive relief, without the requirement for the posting of a bond, in addition to all other remedies at law or in equity. (8) Ownership of Proprietary Rights. Microchip and its licensors retain all right, title and interest in and to the Software and Documentation (“Proprietary Rights”) including, but not limited to all patent, copyright, trade secret and other intellectual property rights in the Software, Documentation, and underlying technology and all copies and derivative works thereof (by whomever produced). Further, copies and derivative works will be considered works made for hire with ownership vesting in Microchip on creation. To the extent such modifications and derivatives do not qualify as a “work for hire,” Licensee hereby irrevocably transfers, assigns and conveys the exclusive copyright thereof to Microchip, free and clear of any and all liens, claims or other encumbrances, to the fullest extent permitted by law. Licensee and Third Party use of such modifications and derivatives is limited to the license rights described in Sections this Agreement. License Rev. No. 03-060111
(9) Termination of Agreement. Without prejudice to any other rights, this Agreement terminates immediately, without notice by Microchip, upon a failure by Licensee or Third Party to comply with any provision of this Agreement. Upon termination, Licensee and Third Party will immediately stop using the Software, Documentation, and derivatives thereof, and immediately destroy all such copies. (10) Warranty Disclaimers. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. MICROCHIP AND ITS LICENSORS ASSUME NO RESPONSIBILITY FOR THE ACCURACY, RELIABILITY OR APPLICATION OF THE SOFTWARE OR DOCUMENTATION. MICROCHIP AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL MEET REQUIREMENTS OF LICENSEE OR THIRD PARTY, BE UNINTERRUPTED OR ERROR-FREE. MICROCHIP AND ITS LICENSORS HAVE NO OBLIGATION TO CORRECT ANY DEFECTS IN THE SOFTWARE. LICENSEE AND THIRD PARTY ASSUME THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS AGREEMENT. (11) Limited Liability. IN NO EVENT WILL MICROCHIP OR ITS LICENSORS BE LIABLE OR OBLIGATED UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, CONTRIBUTION, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT OR INDIRECT DAMAGES OR EXPENSES INCLUDING BUT NOT LIMITED TO INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR ANY CLAIMS BY THIRD PARTIES (INCLUDING BUT NOT LIMITED TO ANY DEFENSE THEREOF), OR OTHER SIMILAR COSTS. The aggregate and cumulative liability of Microchip and its licensors for damages hereunder will in no event exceed $1000 or the amount Licensee paid Microchip for the Software and Documentation, whichever is greater. Licensee acknowledges that the foregoing limitations are reasonable and an essential part of this Agreement. LICENSEE ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE LICENSEE PRODUCTS AND THIRD PARTY PRODUCTS, INCLUDING DETERMINING WHETHER SUCH PRODUCTS INFRINGE A PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY. LICENSEE AGREES THAT MICROCHIP HAS NO OBLIGATION TO INDEMNIFY OR DEFEND LICENSEE IN THE EVENT THAT A THIRD PARTY MAKES A CLAIM REGARDING LICENSEE PRODUCTS OR THIRD PARTY PRODUCTS. (12) General. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF ARIZONA AND THE UNITED STATES WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. Licensee agrees that any disputes arising out of or related to this Agreement, Software or Documentation will be brought in the courts of the State of Arizona. The parties agree to waive their rights to a jury trial in actions relating to this Agreement. If either the Microchip or Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees, costs and other expenses. This Agreement will constitute the entire agreement between the parties with respect to the subject matter hereof. It will not be modified except by a written agreement signed by an authorized representative of the Microchip. Microchip’s authorized representatives will have the right to reasonably inspect Licensee's premises and to audit Licensee's records and inventory of Licensee Products in order to ensure Licensee's adherence to the terms of this Agreement. If any provision of this Agreement will be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. Licensee agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority. The indemnities, obligations of confidentiality, and limitations on liability described herein, and any right of action for breach of this Agreement prior to termination, will survive any termination of this Agreement. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by Licensee without the prior written approval of Microchip except pursuant to a merger, sale of all assets of Licensee or other corporate reorganization, provided that assignee agrees in writing to be bound by the Agreement. Any prohibited assignment will be null and void. Use, duplication or disclosure by the United States Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause of FAR 52.227-19 when applicable, or in subparagraph ©(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Microchip Technology Inc., 2355 W. Chandler Blvd., Chandler, AZ 85224-6199. If Licensee has any questions about this Agreement, please write to Microchip Technology Inc., 2355 W. Chandler Blvd., Chandler, AZ 85224-6199 USA. ATTN: Marketing.
Copyright © 2011 Microchip Technology Inc. All rights reserved.
License Rev. No. 03-060111