This repository has been archived by the owner on Oct 25, 2022. It is now read-only.
-
Notifications
You must be signed in to change notification settings - Fork 67
/
Copy pathEULA
693 lines (612 loc) · 39.9 KB
/
EULA
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
526
527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
559
560
561
562
563
564
565
566
567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
607
608
609
610
611
612
613
614
615
616
617
618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
636
637
638
639
640
641
642
643
644
645
646
647
648
649
650
651
652
653
654
655
656
657
658
659
660
661
662
663
664
665
666
667
668
669
670
671
672
673
674
675
676
677
678
679
680
681
682
683
684
685
686
687
688
689
690
691
692
693
WIND RIVER LINUX PLATFORM
SOFTWARE LICENSE AGREEMENT
This Wind River Linux Platform Software License Agreement (the
"Agreement"), is made between Wind River Systems, Inc. ("Wind River"),
on the one hand, and the individual accessing or using the Software or
any single legal entity on behalf of which such individual is acting
("Customer"), on the other hand. The effective date of this Agreement
is the earlier of the date that you accept this Agreement or the date
that Wind River makes the Products available to you ("Effective Date").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, ACCESSING,
INSTALLING OR USING THE PRODUCTS. BY CLICKING ON THE "I ACCEPT" BUTTON
YOU: ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT,
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND WARRANT YOU HAVE
AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF
AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS
AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF
THIS AGREEMENT, THEN YOU MUST NOT USE THE PRODUCTS AND SERVICES AND YOU
MUST UNINSTALL AND RETURN THE PRODUCT TO WIND RIVER WITHIN TEN (10)
DAYS.
IF YOU ARE EVALUATING THE PRODUCT, THE TERMS SPECIFIED IN APPENDIX B
SHALL APPLY IN ADDITION OF THE TERMS OF THE AGREEMENT AND APPENDIX A.
________________________________________________________________________
The parties agree as follows:
1. SCOPE. This framework Agreement governs Wind River's provision to
Customer of the Products and Services as detailed in the Quote or
Exhibit. Terms in initial capitalized letters, not defined elsewhere in
this Agreement, have the meanings set forth in Section 12 (Definitions).
2. LICENSE. Each program, component or application included in the
Software may be governed by one or more Open Source License(s), as
specified or referenced in the respective Source Code files. Without
limiting the foregoing, for the convenience of Customer, Wind River will
make available, upon request, applicable licensing information in the
Linux Foundation's SPDX(R) format. Tools provided to Customer shall be
licensed under the terms of the attached Appendix A, which is hereby
incorporated by reference into this Agreement.
3. SERVICES.
3.1. Support. Customer's payment of the applicable fees entitles
Customer to Support during the License Term. Support is provided in
accordance with the terms of Wind River's then current Software Support
and Maintenance Agreement, which terms are hereby incorporated by
reference into this Agreement. A copy of the curr ent Software Support
and Maintenance Agreement can be accessed through Wind River's website:
http://www.windriver.com/support/SupportTerms.pdf
3.2. Professional Services. Professional services, if included in a
signed statement of work, will be provided at additional cost and
subject to Wind River's then current Professional Services Terms and
Conditions, which terms are hereby incorporated by reference into this
Agreement. A copy of the current Professional Services Terms and
Conditions can be accessed through Wind River's website:
http://windriver.com/services/ProductAgreementServicesAttachment.pdf
3.3. Education and Training. Education and training services (e.g.,
mentoring, live or remote classes, etc.), if included in the Quote or
Exhibit will be provided pursuant to Wind River's then current Education
Services terms and conditions, which terms are hereby incorporated by
reference into this Agreement. A copy of the current Education Services
terms and conditions can be accessed through Wind River's website:
http://education.windriver.com/content/public/resources/Supplemental_Education_Services_Terms_and_Conditions.pdf
4. CONFIDENTIAL INFORMATION. Customer will not use or disclose any
Confidential Information, except as expressly authorized by this
Agreement, and will protect all such Confidential Information using the
same degree of care that Customer uses with respect to its own
proprietary information, but in no event less than reasonable care. If
Confidential Information must be disclosed to a third party by reason of
legal, accounting or regulatory requirements beyond the reasonable
control of Customer, Customer will: (i) assert the confidential nature
of the information in the action or proceeding; (ii) promptly notify
Wind River of the order or request; and (iii) permit Wind River (at its
own expense) to seek an appropriate protective order.
5. TERM AND TERMINATION.
5.1. Term. The term of this Agreement will commence upon the Effective
Date and continue until expiration of the License Term unless earlier
terminated as set forth herein. The renewal date for all Products and
Services hereunder will be the last day of the applicable License Term,
regardless of whether Customer chooses to license additional Products
during such License Term. Customer must notify Wind River at least
thirty (30) days prior to the end of the License Term of its request to
renew its subscription. Unless the parties mutually agree to renew the
subscription, and Customer pays the then-applicable fees, Customer's
license to the Tools and entitlement to Support will terminate on the
last day of the then-current License Term.
5.2. Termination. Either party may terminate this Agreement immediately
upon notice for the material breach of the other party, which breach is
curable and has remained uncured for a period of thirty (30) days from
the date of notice. In addition, Wind River may immediately terminate
this Agreement if Customer is delinquent on its payment obligations for
thirty (30) days or more.
5.3. Consequences of Expiration or Termination. Upon expiration of the
License Term or termination of this Agreement, Customer will: (a) not
use the Tools for any purpose whatsoever; (b) no longer be entitled to
receive or have access to Support or other Services; (c) immediately
destroy or return to Wind River all material belonging to Wind River or
its licensors, including, without limitation, all Confidential
Information of Wind River then in Customer's possession; and (d)
promptly certify to Wind River in writing that Customer has completed
the actions described in the foregoing subsections. These remedies will
be cumulative and in addition to any other remedies available to Wind
River. Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 will survive expiration
or termination of this Agreement.
6. DELIVERY, PAYMENT AND TAXES.
6.1. Delivery and Payment Terms.
6.1.1. The Product will be deemed irrevocably accepted upon shipment.
When Product is made available to Customer for electronic download
through access to a website and/or server, shipment will be deemed to
have occurred at the time of such availability.
6.1.2. Customer will pay Wind River the fees set forth in the applicable
Exhibit or Quote. Wind River will invoice Customer the applicable fees
upon receipt of a correctly issued purchase order from Customer, which
may coincide with shipment of the Software or Tools. Payment terms
herein are subject to prior credit approval by Wind River. Customer will
pay all invoices within thirty (30) days of the date of such invoice in
U.S. dollars unless otherwise set forth in the applicable Exhibit or
Quote. Interest on late payments will accrue at the rate of one and
one-half percent (1.5%) per month or partial month, or, if lower, the
highest rate permitted by law. Customer is responsible for reasonable
costs associated with collection of overdue amounts, including without
limitation, reasonable attorneys' fees and court costs. Failure to pay
any invoice in the manner described in this Section 6 may, at Wind
River's discretion, be deemed a material breach of this Agreement.
6.1.3. If Products or Services are purchased through an authorized Wind
River distributor, Customer will be invoiced directly by such
distributor (and not Wind River), and Customer will pay the distributor
the applicable fees in accordance with the payment terms agreed to
between Customer and the distributor.
6.2. Purchase Orders. Unless Products or Services are purchased through
an authorized Wind River distributor, Customer will submit to Wind River
a purchase order in the amount specified in the corresponding Exhibit or
Quote. Any additional or different terms and conditions on the purchase
order will be of no force or effect. Wind River may reject any purchase
order that Wind River determines to be outside the scope of this
Agreement.
6.3. Taxes. All amounts due hereunder will be paid without deduction,
set-off or counter claim, free and clear of any restrictions or
conditions, and without deduction for any taxes, levies, imposts,
duties, fees, deductions, withholdings or other governmental charges.
If any deduction is required to be made by law, Customer will pay the
full amount owed to Wind River plus the amount to be deducted, so that
Wind River will receive the same amount as it would have received had
the deduction not been required. If Customer is claiming sales or use
tax exemption, a valid and fully executed Tax Exempt Certificate must be
attached to this Agreement or the applicable Quote or Exhibit, or the
applicable purchase order. Customer will promptly pay or reimburse all
taxes (exclusive of taxes on Wind River's net income), duties and
assessments arising from amounts payable to Wind River under this
Agreement, or furnish Wind River with evidence acceptable to the taxing
authority to sustain exemption therefrom.
7. CUSTOMER COMPLIANCE. Wind River or its designated representative
will have the right to: (a) require that Customer send a written
certification of compliance with the terms of this Agreement within
fifteen (15) days of Wind River's request; and (b) conduct an inspection
and audit ("Audit") upon reasonable notice of the relevant operational,
accounting and sales books and records of Customer and any other
information within Customer's possession or control that is reasonably
necessary to determine whether Customer has complied with this
Agreement, and obtain true and correct photocopies of the foregoing
materials. Such Audit will be conducted during regular business hours
at Customer's offices and so as not to interfere unreasonably with
Customer's normal business activities. Customer will permit or provide
for completion of any Audit within forty-five (45) days of notice. If
an Audit discloses any underpayment of fees, then Wind River will
invoice Customer for, and Customer will promptly pay Wind River, the
underpaid fee amount based on the higher of the price specified in this
Agreement or Wind River's price list in effect at the time the audit is
completed, together with late payment interest in accordance with
Section 6.1 (Delivery and Payment Terms). If an Audit discloses
underpayment of five percent (5%) or more, then Wind River will also
invoice Customer for, and Customer will promptly pay, Wind River's
reasonable costs of conducting the Audit.
8. LIMITED WARRANTY.
8.1. Limited Warranty. The Software is provided "AS IS". In no event
does Wind River warrant that the Software is error free or that the
Software will satisfy Customer's own specific requirements. Customer
assumes full responsibility for: (a) the selection of the Product; (b)
the proper installation and use of the Products; (c) verifying the
results obtained from the use of the Products; and (d) taking
appropriate measures to prevent loss of data.
8.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1
ABOVE, WIND RIVER AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS,
IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS
AND SERVICES PROVIDED UNDER THIS AGREEMENT. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY WIND RIVER, ITS DEALERS, DISTRIBUTORS,
AGENTS OR EMPLOYEES WILL IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES
PROVIDED BY WIND RIVER IN THIS AGREEMENT OR THE APPLICABLE OPEN SOURCE
LICENSES. WIND RIVER DOES NOT WARRANT THAT THE QUALITY OR PERFORMANCE
OF ANY PRODUCT AND SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT
CUSTOMER WILL BE ABLE TO ACHIEVE ANY PARTICULAR RESULTS FROM USE OR
MODIFICATION OF THE PRODUCT, OR THAT THE PRODUCT WILL OPERATE FREE FROM
ERROR. WIND RIVER MAKES NO WARRANTY WITH RESPECT TO ANY MALFUNCTIONS OR
OTHER ERRORS IN ITS PRODUCTS CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR
MALICIOUS CODE NOT DEVELOPED BY WIND RIVER. WIND RIVER MAKES NO
WARRANTY THAT ANY PRODUCTS OF WIND RIVER WILL PROTECT AGAINST ALL
POSSIBLE SECURITY THREATS, INCLUDING INTENTIONAL MISCONDUCT BY THIRD
PARTIES. WIND RIVER IS NOT LIABLE FOR ANY DOWNTIME OR SERVICE
INTERRUPTION, FOR ANY LOST OR STOLEN DATA OR SYSTEMS, OR FOR ANY OTHER
DAMAGES ARISING OUT OF OR RELATING TO ANY SUCH ACTIONS OR INTRUSIONS.
Some jurisdictions do not allow the limitation or exclusion of implied
warranties or how long an implied warranty may last, so the above
limitations may not apply to Customer. This warranty gives Customer
specific legal rights and Customer may have other rights that vary from
jurisdiction to jurisdiction.
9. CUSTOMER INDEMNITY. Customer will defend at its expense Wind River
against any claims, suits, or proceedings brought against Wind River by
third parties resulting from, in connection with, attributable to any
Customer product or service incorporating or using the Software, or by
Customer's direct or indirect end users, and will indemnify Wind River
for any costs, losses, damages, and expenses (including reasonable legal
fees) resulting from or in connection with such claim, suit, or
proceeding. Customer's obligations under this Section are conditioned on
Wind River: (a) providing Customer prompt notice of such claim, suit, or
proceeding; (b) tendering to Customer the defense or settlement of any
such claim, suit, or proceeding at Customer's expense; and (c)
cooperating with Customer, at Customer's expense, in defending or
settling such claim, suit, or proceeding.
10. LIMITATION OF LIABILITY. WIND RIVER AND ITS LICENSORS WILL NOT BE
LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE
OR GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS
OR INTERRUPTION OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, OR LOSS OF
DATA, OR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WIND
RIVER HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL WIND RIVER'S AGGREGATE CUMULATIVE LIABILITY
FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE
AMOUNTS PAID TO WIND RIVER BY CUSTOMER FOR THE AFFECTED PRODUCT OR
SERVICES PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING
THE CLAIM. Some jurisdictions do not allow the exclusion or limitation
of incidental or consequential damages so this limitation and exclusion
may not apply to Customer.
THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED
LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN
WIND RIVER AND CUSTOMER. WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE
PRODUCTS OR SERVICES WITHOUT SUCH LIMITATIONS.
11. GENERAL.
11.1. Governing Law and Venue. This Agreement will be governed in all
respects by the laws of the United States of America and the State of
Delaware, without reference to conflict of laws principles. The United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to to this Agreement. All
disputes arising under this Agreement will be brought exclusively in the
State of Delaware or of the Federal courts sitting therein, provided,
however, that the parties will be entitled to seek injunctive relief in
the appropriate forum. Customer consents to the personal jurisdiction of
the above courts.
11.2. Export Control. All software and technical information delivered
under this Agreement are subject to U.S. export controls under the
Export Administration Regulations (the "EAR") or the International
Traffic in Arms Regulations (the "ITAR") and may be subject to export,
re-export or import regulations in other countries. Customer agrees to
strictly comply with all such laws and regulations. Customer will not
export or re-export the software and technical information, directly or
indirectly, to: (a) any countries that are subject to US export
restrictions (currently including, but not necessarily limited to, Cuba,
Iran, North Korea, Sudan, and Syria); (b) any end user who Customer
knows or has reason to know will utilize them in the design, development
or production of nuclear, chemical or biological weapons, or rocket
systems, space launch vehicles, and sounding rockets, or unmanned air
vehicle systems; or (c) any end user who has been prohibited from
participating in US export transactions by any federal agency of the US
government. Some of Wind River's products are classified as "restricted"
encryption products under Section 740.17(b)(2) of the EAR and may not be
exported or re-exported to government end-users (as defined in Section
772 of the EAR) outside the countries listed in Supplement No. 3 to Part
740 of the EAR without authorization from the U.S. government.
11.3. U.S. Government End-Users. All software and any data relating
thereto or derived therefrom are "commercial items" as defined in 48
C.F.R. 2.101, consisting of "commercial computer software" and
"commercial computer software documentation" as such terms are used in
48 C.F.R. 12.212. If the end User is a U.S. Government agency,
department, or instrumentality, then the use, duplication, reproduction,
release, modification, disclosure or transfer of the Software and any
data relating thereto or derived therefrom, is restricted in accordance
with 48 C.F.R. 12.211, 48 C.F.R. 12.212, 48 C.F.R. 227.7102-2, and 48
C.F.R. 227.7202, as applicable. Customer will provide the Software to
the U.S. Government or to U.S. Government end Users only pursuant to an
end user license agreement in accordance with the terms of this
Agreement. This U.S. Government end users clause is in lieu of, and
supersedes, any Federal Acquisition Regulations ("FAR"), the Defense FAR
Supplement ("DFARS"), or other clause or provision that addresses
Government rights in computer software or technical data.
11.4. Notices. All notices under this Agreement will be: (a) in writing;
(b) delivered by personal delivery or certified or registered mail,
return receipt requested, and deemed given upon personal delivery or
five (5) days after deposit in the mail. Notices to Wind River will be
sent to Wind River Systems, Inc., General Counsel, Legal Affairs, 500
Wind River Way, Alameda, CA 94501, USA (or such other address designated
in writing by Wind River), and notices to Customer will be sent to the
address identified in Customer's purchase order.
11.5. Force Majeure. Neither party will be liable for any failure or
delay (except for the payment of money) on account of strikes,
shortages, riots, insurrection, fires, explosions, acts of God, war,
governmental action, labor conditions, material shortages or any other
cause which is beyond the reasonable control of such party.
11.6. Use of Customer's Name. Subject to Customer's approval, Wind River
may identify Customer as a customer of Wind River products or services.
11.7. Assignment. Customer will not assign, transfer or delegate any
right, license or obligation under this Agreement to a third party,
directly or indirectly, including by operation of law or through
bankruptcy, merger, acquisition, sale or transfer of all, substantially
all or any part of the business or assets of Customer, or undergo a
change of Control, without first obtaining Wind River's prior written
consent, which Wind River may withhold in Wind River's sole discretion.
Any purported assignment, transfer, delegation or change of Control in
violation of this Section 11.7 (Assignment) is null and void. Wind
River may assign, transfer or delegate this Agreement or any right,
license or obligation hereunder in its sole discretion.
11.8. Counterparts. In the event th is Agreement is executed with
signatures, this Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument. Counterparts to this Agreement
transmitted by facsimile transmission, by electronic mail in "portable
document format" (".pdf") form, or by any other electronic means
intended to preserve the original graphic and pictorial appearance of a
document, will have the same effect as a signed original of this
Agreement.
11.9. Waiver. The failure of either party to require performance by the
other party of any provision hereof will not affect the full right to
require such performance at any time thereafter; nor will the waiver by
either party of a breach of any provision hereof be taken or held to be
a waiver of the provision itself.
11.10. Miscellaneous. This Agreement will not create any agency,
employment relationship, partnership or other form of joint enterprise
between the parties. This Agreement and its attachments and exhibits
constitute the entire agreement between Customer and Wind River and
supersedes all prior oral or written agreements between the parties with
respect to the subject matter hereof. The terms and conditions of any
purchase order or other instrument issued by Customer in connection with
this Agreement will be of no force or effect. This Agreement may only
be amended by a writing signed by the parties that refers explicitly to
this Agreement. If a provision of this Agreement is unenforceable or
invalid, the provision will be revised so as to best accomplish the
objectives of the parties.
12. DEFINITIONS. In addition to the terms in initial capitalized letters
defined elsewhere in this Agreement, the following terms in initial
capitalized letters have the respective meanings set forth below:
12.1. "Confidential Information" means information disclosed by Wind
River to Customer, including without limitation, intellectual property,
software programs, documentation, pricing, current, future, and proposed
products and services, which is (a) in tangible form and bears a
"confidential", "proprietary" or similar legend; and (b) discussions
relating to that information whether those discussion occur prior to,
concurrent with, or following disclosure of the information. Wind River
shall make reasonable efforts to mark its confidential information in
tangible form with any of the aforementioned legends prior to
disclosure. However, Wind River's information in tangible form that does
not bear any of these legends, and discussions relating to that
information, shall nevertheless be protected hereunder as Confidential
Information, if Customer knew, or should have reasonably known under the
circumstances, that the information was confidential and had been
communicated to it in confidence. Confidential Information does not
include any information that Customer reasonably demonstrates is: (i)
published or otherwise available to the public other than by breach of
this Agreement by Customer; (ii) rightfully received by Customer from a
third party without confidentiality limitations; (iii) independently
developed by Customer as evidenced by appropriate records; (iv) known to
Customer prior to its first receipt from Wind River as evidenced by
appropriate records; (v) hereinafter disclosed by Wind River to a third
party without restriction on disclosure; or (vi) approved for public
release by written authorization of Wind River.
12.2. "Control" means: (a) ownership of more than fifty percent (50%) of
the outstanding stock or securities entitled to vote for the election of
directors or similar managing authority of the subject entity; (b)
ownership of more than fifty percent (50%) of the ownership interest
that represents the right to make decisions for the subject entity; (c)
any other ability to elect more than half of the board of directors or
similar managing authority of the subject entity, whether by contract or
otherwise; or (d) the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of the
subject entity whether through the ownership of voting securities,
through other voting rights, by contract or otherwise.
12.3. "Exhibit" means an attachment to this Agreement that the parties
may elect to simultaneously or separately execute from time to time, in
addition to the Quote, detailing Products and Services to be provided to
Customer, as well as other business restrictions associated with such
Products and Services (e.g., Project and Development Locations).
12.4. "License Term" means the term set forth in the Quote or Exhibit or
one (1) year commencing on the Effective Date if no term is specified.
12.5. "Object Code" means computer programming code in a form not
readily perceivable by humans and suitable for machine execution without
the intervening steps of interpretation or compilation. 1 2.6. "Open
Source License" means a software license under which the Soft ware
Object Code and/or Source Code is made available under terms that allow
any licensee to copy, create derivative works and distribute the
software without any fee or cost, including but not limited to any open
source license listed by the Open Source Initiative
(http://www.opensource.org).
12.7. "Product" means Software and Tools.
12.8. "Quote" means the Wind River final sales quote detailing the
Products and Services to be provided to Customer, as well as other
business restrictions associated with such Products and Services (e.g.,
Project and Development Locations).
12.9. "Services" means those services provided by Wind River as detailed
in the Quote, statement of work or Exhibit, and includes, but is not
limited to Support, professional services and education services.
12.10. "Software" means the Linux operating system components (such as
the kernel, BSPs and drivers) and any add-on profiles and other related
software components, as specified in the Quote or Exhibit and made
available by Wind River to Customer in Source Code or Object Code form,
including any updates thereto and all accompanying documentation
governed by an Open Source License. Software does not include Tools.
12.11. "Source Code" means computer programming code in human readable
form that is not suitable for machine execution without the intervening
steps of interpretation or compilation.
12.12. "SPDX" means the Software Package Data Exchange specification for
communicating the components, licenses and copyrights associated with a
software package, as developed by the Linux Foundation.
12.13. "Support" means the annual support and maintenance services
specified in the Quote or Exhibit to be provided by Wind River in
accordance with Section 3.1 (Support & Maintenance).
12.14. "Tools" means the proprietary Source Code and Object Code and any
accompanying documentation provided by Wind River under this Agreement
which is intended for Customer's internal use in accordance with the
terms of the Tools Agreement in Addendum 1 (e.g., Wind River Workbench).
Tools shall be deemed "Confidential Information".
APPENDIX A - WIND RIVER LINUX PLATFORM
TOOLS ADDITIONAL TERMS
1. SCOPE. These terms ("Tools Agreement") govern Customer's rights and
obligations with respect to the Tools, as specified in the Quote or
Exhibit. Terms in initial capitalized letters, not defined in the
Agreement or in this Tools Agreement, have the meanings set forth in
Section 5 (Definitions). The terms of the Agreement hereby incorporated
by reference into this Tools Agreement. The terms of this Tools
Agreement shall supersede any conflicting provisions of the Agreement
for purposes of such Tools.
2. LICENSE GRANTS. Subject to Customer's compliance with the terms and
conditions of this Tools Agreement and any Quote or Exhibit, and payment
of the applicable fees, Wind River grants to Customer, during the
License Term, a restricted, personal, non-transferable, non-exclusive,
internal-use license:
2.1. for Floating User Development Licenses, to reproduce and use one
(1) copy of the Tools per Development License on the Supported
Architecture Family, solely for the number of licensed concurrent
Floating Users located at each Development Location and specified as
licensed for such Tools in such Exhibit or Quote;
OR
2.2. for Named User Development Licenses, to reproduce and use one (1)
copy of the Tools per Development License on the Supported Architecture
Family, solely for the licensed Named Users located at each Development
Location and specified as licensed for such Tools in such Exhibit or
Quote. Customer will use license management technology in the Tools to
assign each Development License to a Named User and no other User may
use the copy of the Tools designated for that Development License
without the prior written consent of Wind River; except, however, that
Customer may (a) transfer a Named User Development License from one
Named User to another individual if the Named User has left Customer's
business, and is replaced by another Named User, or (b) make legal name
changes or network UserID changes to the Named User profile information,
subject to notification to Wind River submitted to Wind River's email
alias (CustomerReports@windriver.com);
OR
2.3. for Node-Lock User Development Licenses, to reproduce, access and
use one (1) copy of the Tools per Development License, solely on the
number of "Node-locked hosts" licensed and located at each Development
Location and specified as licensed for such Tools in such Exhibit A or
Quote. For purposes of this Agreement, the "Node" means the host
computer where both the Tools and license management file are physically
installed.
3. GENERAL RESTRICTIONS. 3.1. General. Tools are provided to Customer
in Object Code and are intended for Customer's internal use in
developing applications in accordance with the Development License and
not for distribution. Except as expressly permitted by this Tools
Agreement, Customer will not, nor permit any third party to: (a) for
Floating User Development Licenses: (i) permit access to or use of the
Tools in excess of the quantity of concurrent Floating Users set forth
in the applicable Exhibit or Quote; (ii) transfer any Floating User
Development License from a Development Location in one country to a
Development Location in another country; or (iii) allow one Floating
User in one country to access the Tools from a licensed server in
another country; (b) for Named User Development License, permit
concurrent access to or use of a single copy of the Tools for any Named
User Development License, or access or use by anyone other than the
Named User assigned to the Development License, as set forth in the
applicable Exhibit or Quote; (c) for Node-Lock User Development
Licenses, install the Tools on more than the quantity of licensed Nodes
set forth in the applicable Exhibit or Quote; (d) translate, reverse
engineer, decompile, disassemble (except to the extent applicable laws
specifically prohibit such restriction) or attempt to derive the Source
Code of any Tools Object Code provided to Customer; (e) reproduce the
Tools other than as specified in the applicable license grant set forth
in Section 2 (License Grants); (f) sublicense, rent, lease, loan,
timeshare, sell, distribute, disclose, publish, assign or transfer any
rights, grant a security interest in, transfer possession of the Tools,
or electronically transfer the Tools from one computer to another except
over Customer's internal network pursuant to Section 3.2 (Network
Access); (g) modify, distribute or otherwise use the Tools in any manner
that causes any portion of the Tools that is not already subject to Open
Source License to become subject to the terms of any Open Source
License; or (h) alter or remove any of Wind River's or its licensors'
copyright or proprietary rights notices or legends appearing on or in
the Tools. Customer will reproduce such notices on any copies of the
Tools Customer is permitted to make. Customer will inform all Users of
the restrictions set forth in this Tools Agreement with respect to use
of the Tools.
3.2. Network Access. Floating and Named Users who have a unique network
log-in (e.g., NT or Unix log-in) may access the Tools from a secure
network server located at the Development Location over a secure VPN or
equivalent secure network. Within thirty (30) days following Wind
River's written request, Customer will disclose to Wind River the
Development Location of each network from which Tools will be accessed.
Node-Lock Users will not remotely access the licensed node, where
"remote access" means any access to the node other than being physically
present at the host computer.
3.3. Third Party Software. The Tools licensed under this Tools Agreement
may contain or be derived from materials of third party licensors such
as materials subject to an Open Source Licenses ("Third Party
Software"). Such third party materials may be subject to restrictions in
addition to those listed in this Section 3 (General Restrictions), which
restrictions, if any, are set forth in the third party notice file that
accompanies the Tools. Customer acknowledges and agrees that its use of
Third Party Software is subject to its compliance with any such
additional terms.
3.4 Copies. Customer may make a reasonable number of copies of the
Tools for archival purposes or for use as a back-up. Customer must copy
all copyright legends, trademarks, trade names, and other legends on any
copies of the Tools.
4. KEYS AND ACCESS. Wind River will provide Customer those keys that are
reasonably necessary to permit Customer to gain access to the licensed
Tools. Any technology, ideas, know how, documentation, processes,
algorithms, and trade secrets disclosed to Customer by Wind River in
connection with or as embodied in the Tools and keys shall be considered
"Confidential Information" as defined in the Agreement. Customer will
disclose such keys solely to authorized Users of the Tools. The Tools
also contains license management technology intended to cause the Tools
to cease operating upon expiration or termination of the license.
Customer will not circumvent the license management technology, or any
other security devices, access logs, or other protective measures
provided with the Tools or permit or assist any User or any third party
to do the same. The license management technology and any other
protective measures in the Tools are included solely as a matter of
administrative convenience, and Customer has no right or license in or
to such protective measures. Customer will be invoiced for any
additional Users who access the Tools and will pay any such invoice in
accordance with Section 6 (Delivery, Payment and Taxes) of the
Agreement. Customer will follow the recommended installation procedures
for each Tools product licensed under this Tools Agreement.
5. DEFINITIONS. In addition to the terms in initial capitalized letters
defined elsewhere in this Agreement, the following terms in initial
capitalized letters have the respective meanings set forth below:
5.1. "Development License" means the right of a User to use certain
Tools pursuant to Section 2 (License Grants) of this Tools Agreement.
The Development License type and quantity will be specified in an
Exhibit or Quote.
5.2. "Development Location" means the geographic address of each
Customer site or facility where the Tools are authorized to be installed
and used in accordance with the terms of this Agreement. Customer's
Development Location(s) will be specified in an Exhibit A or Quote.
5.3. "Floating User" means any User who may access and use the Tools
pursuant to Section 2.1 (Floating User Development License).
5.4. "Named User" means any User who uses the Tools pursuant to Section
2.2 (Named User Development License).
5.5. "Node-Lock User" means any User who uses the Tools pursuant to
Section 2.3 (Node-Lock User Development License).
5.6. "Supported Architecture Family" means the target architecture
family or families then-supported by Wind River on which Customer may
use the Tools pursuant to this Agreement, as specified in an Exhibit or
Quote.
5.7. "User" means a Customer employee or independent contractor who (a)
is based at a Development Location, (b) will utilize the Tools on behalf
of Customer, and (c) has signed a confidentiality agreement with
Customer in which such employee or independent contractor agrees to
protect third party confidential information with terms no less
stringent than those set forth herein. A User may be either: a Floating
User, Named User or Node-Lock User, as such terms are further defined in
Section 2 (License Grants). For the avoidance of doubt, a User will be
deemed to have utilized the Tools if such User has accessed or used any
portion of the Tools, including without limitation, to accomplish the
goal of, or which results in, any of the following: (a) developing
Customer products, including without limitation, software systems,
devices, applications or API code, as further specified in Section
2.1(License Grants); (b) using Tools to compile any code; or other
similar engineering activity or result.
5.8. "Externally downloadable 3rd party components" means third party software
that we don't include with our code when we ship, however we do include
recipes/hooks etc that enable downloading from the third party website. By
selecting this component, you understand that it will be downloaded and
installed from a third party website. Such software may involve additional
licensing terms. Please contact your legal department should you have any
questions regarding licensing terms and obligations.
APPENDIX B - WIND RIVER LINUX PLATFORM
PRODUCT EVALUATION TERMS
1. SCOPE. These terms govern Customer's rights and obligations with
respect to Products which are for Customer's limited evaluation purposes
("Evaluation Software"). These terms shall supersede any conflicting
provisions of the Agreement with respect to the Evaluation Software.
2. LICENSE GRANTS. The following license terms and conditions set forth
in this Section 2 (and no other terms) will solely apply to Customer's
use of Evaluation Software:
2.1. Evaluation License. Subject to Customer's compliance with the terms
and conditions of the Agreement, Appendix A and this Appendix B, Wind
River hereby grants to Customer a restricted, personal,
non-transferable, non-exclusive, internal-use license, for a thirty (30)
day period from the Effective Date ("Evaluation Term") to: (i) use the
Tools solely at the Development Location agreed to in writing by the
parties and solely for the purpose of internally evaluating the Products
and not for any other purpose (including without limitation, commercial
or production purposes); and (ii) reproduce the Tools for archive
purposes, consistent with Customer's standard archive procedures.
2.2. Feedback. Customer may disclose any results of any evaluation of
the Products including, without limitation, Customer's opinions,
observations, comments, criticisms and suggested improvements, whether
in written or oral form (herein, "Feedback") from its evaluations only
to Wind River. Should Customer provide Wind River with Feedback, Wind
River will have the right to use such Feedback and related information
in any manner it deems appropriate.
2.3. LIMITED OBLIGATIONS. CUSTOMER ACKNOWLEDGES THAT WIND RIVER HAS NO
OBLIGATION TO PROVIDE SUPPORT OR MAINTENANCE FOR THE EVALUATION
SOFTWARE. IN NO EVENT WILL WIND RIVER'S AGGREGATE CUMULATIVE LIABILITY
FOR ANY CLAIMS ARISING OUT OF OR RELATED TO EVALUATION OF THE PRODUCTS
EXCEED $50.00.
---
Linux Click Wrap Rev Feb 2020