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| 1 | +SOLARFLARE COMMUNICATIONS, INC. |
| 2 | +SOFTWARE LICENSE AGREEMENT |
| 3 | + |
| 4 | +YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. IF YOU |
| 5 | +DO NOT AGREE WITH THEM, YOU SHOULD NOT USE OR INSTALL THE SOFTWARE |
| 6 | +PROGRAM. |
| 7 | + |
| 8 | + |
| 9 | +1. DEFINITIONS |
| 10 | + |
| 11 | + 1.1 "Documentation" means such manuals, documentation and any |
| 12 | + other supporting materials in hardcopy or digital format relating |
| 13 | + to the Software Program as currently available from Solarflare and |
| 14 | + generally provided to its licensees. |
| 15 | + |
| 16 | + 1.2 "Licensed Materials" means the Software Programs and |
| 17 | + Documentation. The Licensed Materials shall be deemed Solarflare’s |
| 18 | + “Confidential Information”. |
| 19 | + |
| 20 | + 1.3 "Software Program" means the object code version and any |
| 21 | + proprietary source code of the computer software provided to |
| 22 | + Licensee under this Agreement, any extracts from such software, |
| 23 | + derivative works of such software or collective works constituting |
| 24 | + such software (such as subsequent releases) to the extent offered |
| 25 | + to Licensee under this Agreement, and the related Documentation. |
| 26 | + |
| 27 | + |
| 28 | +2. SOFTWARE LICENSE |
| 29 | + |
| 30 | + 2.1 License. Subject to the terms and conditions of this |
| 31 | + Agreement, including the payment of all amounts owed by Licensee |
| 32 | + in accordance with Section 3, Solarflare grants to Licensee a |
| 33 | + nonexclusive, nontransferable, non-sublicensable, royalty-free, |
| 34 | + fully paid-up license to use the Software Programs, subject to the |
| 35 | + following limitations: |
| 36 | + |
| 37 | + (a) Licensee shall use the Software Programs for its internal |
| 38 | + purposes only. In no event shall the Software Programs be |
| 39 | + disclosed, made available to or used for the benefit of any |
| 40 | + third party; or sold, assigned, leased, resold or distributed |
| 41 | + or otherwise disposed of. |
| 42 | + |
| 43 | + (b) Licensee shall not copy the Software Programs, except for |
| 44 | + archival or backup purposes or as required by normal |
| 45 | + installation procedures specified by Solarflare. |
| 46 | + |
| 47 | + (c) Except to the extent authorized by applicable law, |
| 48 | + Licensee shall not copy, modify, translate, decompile, |
| 49 | + disassemble or otherwise reverse engineer, or otherwise |
| 50 | + determine or attempt to determine source code or protocols |
| 51 | + from, the executable code of the Software Programs, or create |
| 52 | + any derivative works based upon the Software Programs or |
| 53 | + Documentation, and Licensee shall not permit or authorize |
| 54 | + anyone else to do so. Any such unauthorized copying, |
| 55 | + modifying, translating, decompiling, disassembling and or |
| 56 | + reverse engineering shall constitute a material breach of |
| 57 | + this Agreement and shall terminate the license granted herein |
| 58 | + immediately. Licensee also agrees that any works created in |
| 59 | + violation of this subsection are derivative works and, as |
| 60 | + such, Licensee assigns all right, title and interest therein |
| 61 | + to Solarflare. |
| 62 | + |
| 63 | + 2.2 Open Source. Notwithstanding anything contained in this |
| 64 | + Agreement, if and to the extent that the Software Program contains |
| 65 | + any open source software components, such components are licensed |
| 66 | + to Licensee under the terms of the applicable open source license, |
| 67 | + and this Agreement is not intended to limit any rights granted to |
| 68 | + Licensee under such open source license. |
| 69 | + |
| 70 | + 2.3 Documentation License. Solarflare will provide Licensee with |
| 71 | + Documentation for the Software Program for its internal |
| 72 | + use. Licensee will not allow any copying of, or the creation of |
| 73 | + derivative works from, the Documentation. Licensee shall not |
| 74 | + remove or make illegible in any way, any proprietary markings or |
| 75 | + legends placed upon or contained within the Documentation, nor add |
| 76 | + any proprietary markings or legends. |
| 77 | + |
| 78 | + 2.4 Ownership. Solarflare retains all right, title and interest, |
| 79 | + including, without limitation, all patent rights, copyrights, |
| 80 | + trademarks and trade secrets, in and to the Licensed Materials and |
| 81 | + any portion thereof, including, without limitation, any copy or |
| 82 | + derivative work of the Licensed Materials (or any portion thereof) |
| 83 | + and any update thereto. Any rights to the Licensed Materials not |
| 84 | + granted herein are reserved by Solarflare. |
| 85 | + |
| 86 | + |
| 87 | +3. FEES |
| 88 | + |
| 89 | +In consideration for the license granted pursuant to Section 2.1, |
| 90 | +Licensee shall pay to Solarflare the applicable license fees (the |
| 91 | +“License Fee”) within thirty (30) days of Solarflare, or its channel |
| 92 | +partner’s, invoice. All charges and fees provided for in this |
| 93 | +Agreement are exclusive of any taxes, duties or similar charges |
| 94 | +imposed by any government. |
| 95 | + |
| 96 | + |
| 97 | +4. MAINTENANCE AND SUPPORT |
| 98 | + |
| 99 | +Provided Licensee is current in the payment of the License Fee, (i) |
| 100 | +Solarflare shall provide, free of charge, new releases of the Software |
| 101 | +Program that provide error corrections, improved usability, and/or |
| 102 | +improved performance (“Updates”) which are distributed on a |
| 103 | +when-and-if-available basis free of charge to Solarflare’s |
| 104 | +customers. Updates shall not include Software Programs, whether |
| 105 | +currently existing or developed in the future, which are marketed and |
| 106 | +offered by Solarflare to its customers generally as a separate |
| 107 | +product; (ii) Solarflare may offer Licensee maintenance and support |
| 108 | +services during the Term, subject to Licensee’s entering into a |
| 109 | +separate agreement therefor with Solarflare. |
| 110 | + |
| 111 | + |
| 112 | +5. LIMITED WARRANTY |
| 113 | + |
| 114 | +Solarflare makes the Licensed Materials available to licensee "as is", |
| 115 | +without any warranty and Solarflare hereby expressly disclaims all |
| 116 | +warranties, express, implied or statutory, including any implied |
| 117 | +warranties of merchantability, fitness for a particular purpose, |
| 118 | +title, accuracy and noninfringement, and all warranties that may arise |
| 119 | +out of course of dealing, course of performance or usage of trade. |
| 120 | + |
| 121 | + |
| 122 | +6. TERM AND TERMINATION |
| 123 | + |
| 124 | +This Agreement shall commence on the date of Licensee’s payment of the |
| 125 | +License Fee and shall continue in effect for a period of twelve (12) |
| 126 | +months (the “Term”). Notwithstanding the foregoing, either party may |
| 127 | +terminate this Agreement immediately upon written notice to the other |
| 128 | +party if the other party is in breach of this Agreement or fails to |
| 129 | +perform any of its duties or obligations hereunder (a “Default”) and |
| 130 | +fails to cure such Default within thirty (30) days after receipt of |
| 131 | +written notice from the non-defaulting party specifying the occurrence |
| 132 | +or existence of the Default. Upon termination of this Agreement, the |
| 133 | +provisions of Sections 2.4 and Sections 7, 8 and 9 shall survive. |
| 134 | + |
| 135 | + |
| 136 | +7. LIMITATION OF LIABILITY |
| 137 | + |
| 138 | + 7.1 Unless otherwise prohibited by law, the total liability of |
| 139 | + Solarflare and its suppliers and contractors arising out of or |
| 140 | + related to this Agreement shall not exceed the amounts paid by |
| 141 | + Licensee to Solarflare for the Licensed Materials. This |
| 142 | + limitation of liability is cumulative and not per incident. |
| 143 | + |
| 144 | + 7.2 Except for a licensee breach of any of the licensing terms |
| 145 | + or confidentiality obligations, in no event shall Solarflare or |
| 146 | + its suppliers or contractors be liable for any loss of use, |
| 147 | + interruption of business, lost profits, lost data, recovery of |
| 148 | + data, or any indirect, special, incidental, or consequential |
| 149 | + damages, however caused and on any theory of liability, whether |
| 150 | + in contract, tort (including negligence) strict liability or |
| 151 | + otherwise, even if a party has been advised of the possibility |
| 152 | + of such damages. |
| 153 | + |
| 154 | + |
| 155 | +8. INDEMNITY |
| 156 | + |
| 157 | +Solarflare shall defend and pay damages awarded for, or at its option |
| 158 | +settle, any third-party claim brought against Licensee to the extent |
| 159 | +it alleges that the Licensed Materials delivered to Licensee and used |
| 160 | +as authorized in this Agreement infringe any intellectual property |
| 161 | +rights of any third party; provided that Licensee provides Solarflare |
| 162 | +with (i) prompt written notice of such claim; (ii) sole control over |
| 163 | +the defense and settlement of such claim; and (iii) all information |
| 164 | +and assistance reasonably requested by Solarflare in connection with |
| 165 | +the defense or settlement of such claim. In the event any such claim |
| 166 | +is brought or threatened, Solarflare may, at its sole option and |
| 167 | +expense: (a) procure for Licensee the right to continue use of the |
| 168 | +Licensed Materials or infringing part thereof; (b) modify or amend the |
| 169 | +Licensed Materials or infringing part thereof to make it/them |
| 170 | +non-infringing; (c) replace the Licensed Materials or infringing part |
| 171 | +thereof with non-infringing software having substantially similar |
| 172 | +capabilities; or (d) if none of the foregoing are commercially |
| 173 | +practicable, terminate this Agreement and repay to Licensee any |
| 174 | +pre-paid portion of the License Fee for the infringing Licensed |
| 175 | +Materials. Notwithstanding the foregoing, Solarflare will have no |
| 176 | +liability to Licensee for any claim of infringement to the extent such |
| 177 | +claim arises out of or is based upon (i) any modification of the |
| 178 | +Licensed Materials, in whole or in part, not made or authorized in |
| 179 | +writing by Solarflare; (ii) Licensee’s failure to use the Licensed |
| 180 | +Materials in accordance with this Agreement, or Documentation or |
| 181 | +instructions provided by Solarflare, or otherwise using the Licensed |
| 182 | +Materials for purposes for which they were not designed or intended; |
| 183 | +(iii) software updates provided by Solarflare to comply with the |
| 184 | +designs, requirements or specifications requested by Licensee; or (iv) |
| 185 | +use of any specified release of the Licensed Materials after |
| 186 | +Solarflare notifies Licensee that continued use of such release may |
| 187 | +subject Licensee to a claim of infringement, if Solarflare provides |
| 188 | +Licensee with a replacement release. |
| 189 | + |
| 190 | + |
| 191 | +9. GENERAL |
| 192 | + |
| 193 | + 9.1 Assignment. Licensee may not assign this Agreement or any of |
| 194 | + its rights or obligations under this Agreement, by operation of |
| 195 | + law or otherwise, without the prior written consent of |
| 196 | + Solarflare. This Agreement shall bind each party and its permitted |
| 197 | + successors and assigns. Any assignment in contravention of this |
| 198 | + Section 9.1 shall be null and void and of no force or effect. |
| 199 | + |
| 200 | + 9.2 Disputes. This Agreement shall be governed by and construed |
| 201 | + in accordance with the laws of the State of California, without |
| 202 | + reference to conflicts of law principles. The UN Convention on |
| 203 | + Contracts for the International Sale of Goods shall not |
| 204 | + apply. This Agreement is the entire agreement of the parties, and |
| 205 | + supersedes all prior or contemporaneous agreements, communications |
| 206 | + or representations, written or oral, between the parties with |
| 207 | + respect to the subject matter of this Agreement and represents the |
| 208 | + complete integration of the parties’ agreement. Any different or |
| 209 | + additional terms of any related purchase order, confirmation, |
| 210 | + quote or similar ordering document, even if signed by the parties |
| 211 | + after the date hereof, shall have no force or effect on this |
| 212 | + Agreement. If any provision of this Agreement shall be held to be |
| 213 | + invalid, illegal or unenforceable, the remaining provisions shall |
| 214 | + not be affected or impaired. This Agreement may be modified only |
| 215 | + by a written agreement executed by authorized officers of each |
| 216 | + party. No delay or omission to exercise any right or remedy |
| 217 | + accruing to a party upon any breach or default of the other party |
| 218 | + shall impair that right or remedy, or be construed to be a waiver |
| 219 | + of any breach or default. The prevailing party in any legal action |
| 220 | + brought pursuant to this Agreement shall be entitled to recover |
| 221 | + its reasonable legal fees, costs and other expenses. |
| 222 | + |
| 223 | + 9.3 Force Majeure. Except for the obligation to pay monies due and |
| 224 | + owing, neither party shall be liable for any delay or failure in |
| 225 | + performance due to events outside the defaulting party’s |
| 226 | + reasonable control, including without limitation acts of God, |
| 227 | + labor disputes, shortages of supplies, fire, war, disruption |
| 228 | + related to terrorism, epidemics, or delays of common carriers. |
| 229 | + The obligations and rights of the excused party shall be extended |
| 230 | + on a day to day basis for the time period equal to the period of |
| 231 | + the excusable delay. |
| 232 | + |
| 233 | + 9.4 Notices. Any notice under this Agreement must be in writing |
| 234 | + and is deemed given and effective three (3) business days after |
| 235 | + mailing first class, postage prepaid, or when sent by facsimile |
| 236 | + (confirmed by first class mail) or when delivered by overnight |
| 237 | + express or other delivery service, to the party at the address |
| 238 | + above. |
| 239 | + |
| 240 | + 9.5 Compliance with Laws. Licensee hereby acknowledges that the |
| 241 | + Licensed Materials supplied by Solarflare hereunder are subject to |
| 242 | + export controls under the laws and regulations of the United |
| 243 | + States and other countries. Licensee shall comply with such laws |
| 244 | + and regulations and agrees not to export, re-export or transfer |
| 245 | + the Licensed Materials without first obtaining all required |
| 246 | + U.S. Government and other relevant government authorizations or |
| 247 | + licenses. |
| 248 | + |
| 249 | + 9.6 Confidentiality. Licensee agrees not to use any Confidential |
| 250 | + Information for any purpose except to exercise its rights and |
| 251 | + perform its obligations under this Agreement. Licensee agrees not |
| 252 | + to disclose or permit to be disclosed, either directly or |
| 253 | + indirectly, any Confidential Information to third parties or to |
| 254 | + such party’s employees, except to those employees of Licensee with |
| 255 | + a need to know or use the Confidential Information. If Licensee |
| 256 | + breaches, or threatens to breach the provisions of this Section |
| 257 | + 9.6, Licensee agrees that Solarflare will have no adequate remedy |
| 258 | + at law and is therefore entitled to seek immediate injunctive and |
| 259 | + other equitable relief, without bond and without the necessity of |
| 260 | + showing actual money damages. |
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