MEGACORE FUNCTION LICENSE TERMS AND CONDITIONS
PLEASE CAREFULLY REVIEW THE FOLLOWING TERMS AND CONDITIONS BEFORE DOWNLOADING AND USING THE DELIVERABLES.UNLESS YOU HAVE A SEPARATE LICENSE AGREEMENT SIGNED BY AN AUTHORIZED ALTERA REPRESENTATIVE, BY USING OR INSTALLING THE DELIVERABLES AND/OR PAYING A LICENSE FEE, YOU INDICATE YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS, WHICH CONSTITUTE THE LICENSE AGREEMENT (“AGREEMENT”) BETWEEN YOU AND ALTERA CORPORATION OR THE ALTERA CORPORATION SUBSIDIARY FROM WHICH YOU HAVE ACQUIRED THIS LICENSE (COLLECTIVELY “ALTERA”).
THE DELIVERABLES MAY CONTAIN PARTICULAR COMPONENTS, FILES, OR PORTIONS THAT ARE SUBJECT TO SEPARATE LICENSE AGREEMENTS WITH DIFFERENT TERMS AND CONDITIONS.IN EACH SUCH CASE, THE APPLICABLE LICENSE AGREEMENT IS SET FORTH IN A SEPARATE FILE (OFTEN CALLED“LICENSE.TXT”) AND WHICH EXCLUSIVELY GOVERNS THE RELEVANT COMPONENTS, FILES, OR PORTIONS.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT OR THE LICENSE.TXT FILE, DO NOT USE THE DELIVERABLES AND PLEASE PROMPTLY UNINSTALL AND DESTROY ANY COPIES YOU HAVE MADE.
IF YOU WISH TO PRINT OUT THIS AGREEMENT, YOU SHOULD HIGHLIGHT THIS TEXT, RIGHT-CLICK, SELECT “COPY” THEN “PASTE” IT INTO A DOCUMENT IN YOUR WORD PROCESSING PROGRAM.
YOU AND ALTERA MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS “PARTIES,” AS THE SITUATION MAY REQUIRE.
1.0 Definitions. For the purposes of this Agreement, the following definitions shall apply:
1.1 “Altera Device(s)” means field programmable gate arrays, complex programmable logic devices, structured application specific integrated circuit devices, and/or any other semiconductor devices designed, developed or manufactured by or on behalf of Altera.
1.2“Confidential Information” shall mean any business, marketing, technical, scientific, or other information disclosed which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by a person, exercising reasonable business judgment, to be confidential, or is otherwise stated in this Agreement to be confidential.
1.3“Contractor” shall mean a person, company, corporation, or other entity that (a) provides design, testing, or integration services for Licensee solely for implementation within Altera devices, and (b) is subject to a written confidentiality agreement protecting Altera’s Confidential Information with restrictions no less restrictive than those contained herein.No competitor of Altera shall be a Contractor.
1.4 “Deliverables” means (a) the applicable MegaCore Function, (b) any format test benches (if applicable) and/or suite of test vectors (if applicable), and (c) product/user documentation (if applicable) relating to the MegaCore Function.
1.5“Intellectual Property” means any or all of the following and all rights in, arising out of, or associated therewith: (a) all United States and foreign patents and applications therefore and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries; (b) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, algorithms, techniques, methods, devices, technical data, customer lists, and all documentation embodying or evidencing any of the foregoing; (c) all copyrights, copyright registrations and applications therefore, and all other rights corresponding thereto throughout the world and all materials that are or may be subject to protection under copyright laws; (d) all trade names, logos, trade dress, common law and registered trademarks and service marks, trademark and service mark registrations and applications therefore, and all goodwill associated therewith throughout the world; (e) all computer software, including all source code, object code, firmware, development tools, files, records, and data, and all media on which any of the foregoing is recorded; (f) all World Wide Web addresses, sites, and domain names; (g) all mask works; (h) all so-called “moral rights” or “droit moral”; and (i) any similar, corresponding, or equivalent rights to any of the foregoing anywhere in the world.
1.6 “Licensed Products” means Altera Device(s) in which the MegaCore Function, in whole or part, or, if applicable, as modified by Licensee or Contractor under this Agreement, are implemented pursuant to the terms of this Agreement.
1.7“Licensee” means You.
1.8 “MegaCore Function” means one or more design files, including simulation models (such as VHDL and Verilog HDL, Quartus simulation, Matlab, Simulink, etc.) and other models, each of which may be provided in encrypted source code or object code formats, where each design file implements or supports the implementation of a specific logic function into an Altera Device.“MegaCore Function” expressly excludes the components, files, or portions that are subject to the applicable license agreement(s) set forth in the License.txt file.
1.9 “OpenCore Plus Evaluation Program” means a limited licensing program offered by Altera that permits a free evaluation of a MegaCore Function prior to payment of a licensing fee.
1.10 “Specification” means Altera’s then current technical description for the applicable MegaCore Function covered by this Agreement to the extent such technical description relates to the operation, performance, and other material attributes of such MegaCore Function.
1.11“Support Services” means any services provided by Altera in connection with or related to the Deliverables.
2.License to the Deliverables:
2.1 Subject to the terms and conditions of this Agreement and unless Licensee has acquired the MegaCore Function through Altera’s OpenCore Plus Evaluation Program, Altera grants to Licensee a non-transferable and non-sublicensable (except as expressly set forth herein), non-exclusive, perpetual, royalty-free, and world-wide license to:
(a)design with, parameterize, compile, route, and generate programming files and netlists with the Deliverables for implementation in Altera Devices; and
(b)if the Licensed File Format is “Source Code”, modify and create derivative works, in whole or in part, of the Deliverables for implementation in Altera Devices; and
(c)program Altera Devices with the Deliverables; and
(d)if the Licensee Type is “Partner”, sublicense its rights under Sections 2.1(a) and 2.1(b) above, as applicable, to Contractors but only for the period during which such party is acting as a Contractor to Licensee and so long as Licensee assumes full liability for Contractor’s use of the Deliverables in compliance with this Agreement; and
(e)only if Licensee Type is “Partner”, the Licensed File Format is “Source Code”, and Licensee is expressly granted sublicensing rights as specified by Altera, sublicense to its customers (“Licensee Customers”) the Deliverables, in encrypted format only and only as modified in accordance with this Agreement, solely for Licensee Customers (i) to internally evaluate such Deliverables, (ii) to program Altera Devices with such Deliverables, and (iii) to manufacture or have manufactured, distribute or have distributed, sell or have sold, or otherwise market or have marketed products containing one or more Licensed Products; and
(f)if the Licensee Type is “End User”, manufacture or have manufactured, distribute or have distributed, sell or have sold, or otherwise market or have marketed products containing one or more Licensed Products.
2.2Notwithstanding Section 2.1, if Licensee has acquired the MegaCore Function through Altera’s OpenCore Plus Evaluation Program, Altera grants to Licensee a single concurrent user, non-transferable, non-exclusive limited license to: (a) engage in software evaluation by performing design entry, timing, place and route, compilation and verification of logic designs for Altera Devices for evaluation purposes only, provided that Licensee must acquire from Altera a license that specifically permits the programming of Altera Devices for production use prior to doing so, and (b) engage in hardware evaluation by programming the MegaCore Function into Altera Devices so long as the Altera Device is continuously connected via a programming cable to a host development computer that is running Altera development tool programmer software, or otherwise the MegaCore Function will operate for a predetermined amount of time, after which the MegaCore Function is automatically disabled and inoperable.
2.3Altera shall use commercially reasonable efforts to deliver to Licensee, via electronic transfer when possible, the Deliverables in a timely manner.
2.4Licensee may copy the Deliverables for back-up or archival purposes only and may use the Deliverables over a network.
2.5 Licensee will not, and shall cause its Contractors, if applicable, and Licensee Customers, if applicable, to not remove any Altera intellectual property notices from the Deliverables.Any copies of the Deliverables made by or for Licensee shall include all Intellectual Property and confidentiality notices appearing on such Deliverables.Any copy or portion of the Deliverables, including any modified versions or derivative works, or any portion merged into a Licensed Product, will continue to be subject to the terms and conditions of this Agreement.
2.6 Except for the express licenses granted in Sections 2.1 and 2.2 above, no other licenses are granted by Altera by implication, estoppel, or otherwise, and all rights not expressly granted herein are reserved by Altera.
2.7 All Intellectual Property embodied in the Deliverables, including enhancements, corrections, improvements, modified versions, or derivative works thereof, in whole or in part, that is created, conceived, or first reduced to practice (a) solely by or on behalf of Altera, (b) solely by or on behalf of Licensee, or (c) by Altera and Licensee jointly shall be the sole and exclusive property of Altera Corporation or its subsidiaries.
2.8 To perfect Altera’s ownership interests in its Intellectual Property described in Section 2.7 above, Licensee agrees to assign to Altera all rights that Licensee may otherwise have in such Intellectual Property and to assist and cooperate with Altera in all reasonable respects (a) in actions to establish, transfer, or maintain such ownership rights, including executing documents associated therewith, and (b) in actions of enforcement of such ownership rights.Licensee agrees to waive any and all moral rights related to Altera’s Intellectual Property described in Section 2.7 above, including without limitation any and all rights of identification of authorship and any and all rights of approval, restrictions or limitation on use, or subsequent modification.
2.9 Licensee recognizes that Altera is or may be independently developing for commercial use products that may be complementary to or competitive with products of Licensee (if the Licensee Type is “End User”) or products of Licensee or Licensee Customers (if the Licensee Type is “Partner”) and may in the future independently develop competitive products.Nothing in this Agreement shall limit Altera’s independent development and marketing of any products or systems, without use of Licensee’s confidential information in any of the foregoing cases.This Agreement shall not prevent Altera from undertaking discussions with third parties, including competitors of Licensee (if the Licensee Type is “End User”) or competitors of Licensee or Licensee Customers (if the Licensee Type is “Partner”), provided that in all instances Altera does not do so in breach of Section 8 below.
3. License Restrictions:
3.1 except as SET FORTH IN SECTION 2 ABOVE, Licensee may not OTHERWISE use, SUBLICENSE, DISCLOSE, OR TRANSFER the DELIVERABLES. EXCEPT TO THE EXTENT THAT LICENSEE HAS BEEN PROVIDED THE SOURCE CODE TO THE DELIVERABLES, LICENSEE MAY NOT DECOMPILE, DISASSEMBLE, OR OTHERWISE REVERSE ENGINEER THE DELIVERABLES OR ATTEMPT TO ACCESS OR DERIVE THE SOURCE CODE OF THE DELIVERABLES OR ANY ALGORITHMS, CONCEPTS, TECHNIQUES, METHODS, OR PROCESSES EMBODIED THEREIN; PROVIDED, HOWEVER, THAT IF LICENSEE IS LOCATED IN A MEMBER NATION OF THE EUROPEAN UNION OR OTHER NATION THAT PERMITS LIMITED REVERSE ENGINEERING NOTWITHSTANDING A CONTRACTUAL PROHIBITION TO THE CONTRARY, LICENSEE MAY PERFORM LIMITED REVERSE ENGINEERING, BUT ONLY AFTER GIVING NOTICE TO ALTERA AND ONLY TO THE EXTENT PERMITTED BY THE APPLICABLE LAW IMPLEMENTING THE EU SOFTWARE DIRECTIVE OR OTHER APPLICABLE LAW NOTWITHSTANDING A CONTRACTUAL PROHIBITION TO THE CONTRARY.
3.2LICENSEE IS EXPRESSLY PROHIBITED FROM USING, AND SHALL PROHIBIT ANY PERMITTED SUBLICENSEES FROM USING, THE DELIVERABLES TO PROGRAM PROGRAMMABLE LOGIC DEVICES, FIELD PROGRAMMABLE GATE ARRAYS, APPLICATION SPECIFIC INTEGRATED CIRCUITS, APPLICATION SPECIFIC STANDARD PRODUCTS, OR ANY OTHER INTEGRATED CIRCUIT PRODUCTS DESIGNED OR MANUFACTURED BY ANY COMPANY OR ENTITY OTHER THAN ALTERA.
3.3LICENSEE MAY NOT MODIFY OR SYNTHESIZE ANY SIMULATION MODEL OUTPUT FILES GENERATED OR RESULTING FROM THE MEGACORE FUNCTION. LICENSEE MAY NOT PUBLISH OR DISCLOSE THE RESULTS OF ANY BENCHMARKING OF THE MEGACORE FUNCTION, OR USE SUCH RESULTS FOR LICENSEE’S OWN COMPETING SOFTWARE DEVELOPMENT ACTIVITIES, WITHOUT THE PRIOR WRITTEN PERMISSION OF ALTERA.LICENSEE’S USE OF THE MEGACORE FUNCTION REQUIRES THE PRIOR ACQUISITION AND INSTALLATION OF ALTERA’S SOFTWARE DEVELOPMENT TOOLS.LICENSEE WILL RECEIVE A NODE-LOCKED LICENSE TO THE MEGACORE FUNCTION UNLESS LICENSEE HAS A FLOATING LICENSE TO ALTERA’S SOFTWARE DEVELOPMENT TOOLS.
3.4LICENSEE UNDERSTANDS THAT THE MEGACORE FUNCTION MAY BE FUNCTION-, TIME- OR CLOCK-CYCLE LIMITED AND THUS, WITHOUT LIMITING THE EFFECT OF SECTION 11, IN NO EVENT WILL ALTERA BE HELD LIABLE FOR ANY DAMAGES OR LOSSES TO LICENSEE OR ANY THIRD-PARTY RESULTING FROM THE AUTOMATIC DISABLING OF ANY MEGACORE FUNCTIONS OBTAINED THROUGH ALTERA’S OPENCORE PLUS EVALUATION LICENSE.
3.5The Deliverables are not authorized for use as critical components in life support devices or systems without the express written approval of the president of Altera Corporation. As used herein: (a) life support devices or systems are devices or systems that are intended for surgical implant into the body or support or sustain life, and whose failure to perform, when properly used in accordance with instructions for use provided in the labeling, can be reasonably expected to result in a significant injury to the user; and (b) a critical component is any component of a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system or to affect its safety or effectiveness.
4.License Grant to Altera
4.1 If Licensee provides Altera with comments or suggestions for the modification, correction, improvement, or enhancement of (a) the Deliverables, (b) any Confidential Information disclosed by Altera to Licensee, or (c) Altera products that may embody such Confidential Information, then Licensee grants to Altera a nonexclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense Altera licensees and customers, under Licensee’s Intellectual Property, the right to use and disclose such comments or suggestions in any manner Altera chooses and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, have sold, and otherwise dispose of Altera’s and its sublicensees’ products embodying such comments in any manner and via any media Altera chooses, but without reference to the source of such comments and/or suggestions.
4.2 Except for the express licenses granted in Section 4.1 above, no other licenses are granted by Licensee by implication, estoppel, or otherwise, and all rights not expressly granted herein are reserved by Licensee
5.1 This Agreement is effective from the Effective Date and continues until terminated in accordance with the terms of this Agreement.Altera may terminate this Agreement immediately upon a determination by a court of competent jurisdiction that the Deliverables, in whole or in part, infringe any intellectual property right.Licensee may terminate this Agreement at any time by destroying the Deliverables together with all copies and portions thereof in any form (including any portions merged into a design or product) and providing no less than one hundred twenty (120) days prior written notice to Altera.Either Party may terminate this Agreement immediately for cause by written notice to the other Party if the other Party (a) ceases to do business or terminates its business operations; (b) breaches any material term or condition of this Agreement; or (c) becomes insolvent or seeks protection under any bankruptcy or liquidation or similar proceedings.
5.2 Upon any termination of this Agreement, the license and rights of Licensee under this Agreement shall terminate, and Licensee shall destroy, and shall cause any permitted sublicensees to destroy, the Deliverables, including all copies and portions thereof in any form (including any portions thereof merged into a design or Licensed Product), and certify the same to Altera.Notwithstanding the foregoing, in the event of termination of this Agreement, Licensee Customers (if the Licensee Type is “Partner”) or Licensee (if the Licensee Type is “End User”) may continue to sell and use the systems containing the Licensed Products that, prior to termination, have been developed in accordance with this Agreement and shipped to the end customers of Licensee Customers (if the Licensee Type is “Partner”) or Licensee (if the Licensee Type is “End User”).In no event may any portions of the Deliverables be used in development after termination. In the event of termination for any reason, all definitions in this Agreement and the rights, obligations, and restrictions under Sections 2.5, 2.6, 2.7, 2.8, 2.9, 3, 4, 5, 6, 8, 9, 11 and 12 shall survive termination of this Agreement.
For the license and other rights granted under this Agreement, Licensee shall provide the consideration specified by Altera.Such consideration shall, as directed by Altera, be provided directly to Altera or through an authorized distributor.Licensee shall pay any and all sales, use, excise, and other tax assessments on the Deliverables or otherwise arising out of this Agreement or the transactions contemplated hereunder, exclusive of taxes based on Altera’s net income or corporate or franchise taxes.
7.Maintenance or Support:
7.1 Unless Licensee has licensed the Deliverables through Altera’s OpenCore Plus Evaluation Program, Altera will, but only until the date, in the format YYYY.MM, provided in the license file for a particular MegaCore Function (“Maintenance Expiration Date”): (a) use commercially reasonable efforts to provide Licensee with fixes to defects in the MegaCore Function that cause the MegaCore Function not to conform substantially to the Specifications and that are diagnosed as such and replicated by Altera, (b) provide Licensee with fixes and other updates to the MegaCore Function that Altera, in its sole discretion, chooses to make generally available to its customers without a separate charge; and (c) respond by telephone or email to inquiries from Licensee.Altera is not obligated to provide any maintenance or support for the Deliverables where Licensee has licensed the Deliverables through Altera’s OpenCore Plus Evaluation Program.
7.2 Except as set forth in Section 7.1 above, Altera will not have any obligation to provide to Licensee any maintenance, support, or training, or to provide any error corrections, updates, upgrades, new versions, other modifications, or enhancements to the Deliverables, the Altera Devices, or any Licensed Products.Licensee shall, at its own expense, be solely responsible for providing technical support and training to any of its customers and any other end users of the Deliverables, any Deliverable, or any Licensed Products, and Altera will have no obligation to any such parties with respect thereto.Licensee shall be solely responsible for, and Altera shall have no obligation to honor, any warranties that Licensee provides to its customers or to any other end users of any Licensed Products.
8.1 Licensee acknowledges that the Deliverables contain Confidential Information of Altera.Licensee agrees (a) to use at least the same degree of care as it uses with respect to its own confidential information, but in no event less than reasonable care, to prevent any Confidential Information disclosed by Altera from being disclosed to any third party, except as permitted by this Agreement, (b) not to use or disclose Altera Confidential Information for any purpose other than the purpose of programming Altera Devices with the Deliverables (the “Intended Purpose”), and (c) to restrict disclosure of Altera Confidential Information solely to those of Licensee’s employees and Contractors (if applicable), each with a need to know for the Intended Purpose and who agree to be bound by confidential non-disclosure agreements no less strict than this Agreement, and not disclose it to other third parties.Licensee shall be liable to Altera for any breaches by its employees and Contractors (if applicable).Licensee shall not reverse engineer, disassemble, or decompile the Deliverables that embody Altera Confidential Information.
8.2 Licensee shall have no obligations of confidentiality with respect to any Confidential Information to the extent that it (a) is already in the public domain or falls into the public domain through no breach of this Agreement (or any other obligation to Altera) on the part of Licensee; (b) is already known to Licensee and is not under any obligation of confidentiality before receiving such Confidential Information from Altera; (c) is rightfully obtained by Licensee from a third party and not under any obligation of confidentiality; or (d) is developed independently by Licensee by individuals without access to the Confidential Information.Licensee may, however, disclose Confidential Information to the extent required by a court of competent jurisdiction or an authorized government agency, provided Altera is given reasonable notice of such disclosure.
9. Limited Representations and Warranties:
9.1 Unless Licensee has acquired the MegaCore Function through Altera’s OpenCore Plus Evaluation Program, Altera represents and warrants to Licensee that, until the Maintenance Expiration Date (“Warranty Period”), the MegaCore Function will substantially conform to the Specifications if used in compliance with the terms of this Agreement.Licensee’s sole remedy, and Altera’s sole obligation, for a breach of this warranty shall be (a) for Altera to use commercially reasonable efforts to remedy the nonconformance, or (b) if Altera, after using reasonable commercial efforts, is unable substantially to remedy the nonconformance, for Licensee to receive a refund of license fees paid during the previous one (1) year for the defective MegaCore Function.If Licensee receive such a refund, Licensee agrees that its license and rights under this Agreement for the defective MegaCore Function shall immediately terminate and Licensee agrees to destroy the defective MegaCore Function, including all copies thereof in any form and any portions thereof merged into a design or product, and to certify the same to Altera.
9.2 The foregoing warranties apply only to MegaCore Functions delivered by Altera or its authorized distributors.The warranties are provided only to Licensee, and may not be transferred or extended to any third party, and apply only during the Warranty Period for claims of breach reported (together with evidence thereof) during the Warranty Period.Licensee shall provide Altera with such evidence of alleged non-conformities or defects as Altera may request, and Altera shall have no obligation to remedy any non-conformance or defect it cannot replicate.The warranties do not extend to any MegaCore Function that have been modified by anyone other than Altera or any authorized distributor.
9.3 ANY MEGACORE FUNCTION OBTAINED BY LICENSEE THROUGH THE OPENCORE PLUS EVALUATION PROGRAM IS PROVIDED BY ALTERA “AS IS” WITH NO WARRANTIES.
9.4 Each Party represents to the other Party that it has the right to enter into this Agreement and to perform its obligations hereunder.
9.5 EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE DELIVERABLES OR SUPPORT SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALTERA EXPRESSLY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN.EXCEPT AS OTHERWISE PROVIDED UNDER THIS AGREEMENT, LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE DELIVERABLES AND ANY DESIGN OR PRODUCT IN WHICH THE DELIVERABLES MAY BE USED, INCLUDING, WITHOUT LIMITATION, ANY LICENSED PRODUCTS.SHOULD THE DELIVERABLES PROVE DEFECTIVE, EXCEPT AS OTHERWISE DESCRIBED UNDER THIS AGREEMENT, NEITHER ALTERA NOR ITS AUTHORIZED DISTRIBUTORS ASSUMES LIABILITY FOR ANY COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION.No representation or other affirmation of fact, including but limited to statement regarding capacity, suitability for use or performance of the Deliverables, whether made by Altera employees or otherwise, shall be deemed to be a warranty for any purpose or give rise to any liability of Altera whatsoever.By making the Deliverables available, Altera expressly does not recommend, suggest, or require that the Deliverables be used in combination with any other product not provided by Altera.Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to Licensee in full, but shall be interpreted to apply to the maximum extent permissible under applicable law.
10.1 Expressly subject to Section 11, and unless Licensee has acquired the Deliverables through Altera’s OpenCore Plus Evaluation License, Altera shall defend Licensee against any proceeding brought by a third party to the extent based on a claim that the Deliverables, as delivered by Altera and as used in accordance with this Agreement, infringes a third party’s United States or European Union copyright, trade secret or trademark, and pay any damages finally awarded in the proceeding as a result of the claim (or pay any amount agreed to by Altera as part of a settlement of the claim), provided that Altera shall have no liability hereunder unless Licensee notifies Altera promptly in writing of any such proceeding or claim, gives Altera sole and complete authority to control the defense and settlement of the proceeding or claim, and complies with any and all requests by Altera for information, materials, and other assistance.
10.2 In the event of any such claim or proceeding or threat thereof, Altera may (and, in the event any such claim or proceeding results in the issuance of an injunction by a court of competent jurisdiction prohibiting Licensee from using the Deliverables, Altera shall), at its option and expense and subject to the limitations of this Section 10 and Section 11, seek a license to permit the continued use of the Deliverables or affected portion thereof, or use commercially reasonable efforts to replace or modify the Deliverables so that the replacement or modified version is non-infringing or has a reduced likelihood of infringement, provided that the replacement or modified version has functionality comparable to that of the original.If Altera is unable, after exercising reasonable commercial efforts, to obtain such license or provide such replacement or modification, Altera may in its sole discretion terminate Licensee’s license and rights with respect to the Deliverables, in which event Licensee shall return to Altera the Deliverables, including all copies and portions thereof in any form (including any portions thereof merged into a design or product), and certify the same to Altera, and Altera shall refund the license fee, if any, paid by Licensee during the previous one (1) year for the Deliverables.
10.3 Altera shall have no liability or obligation to Licensee hereunder for any infringement or claim based on or resulting from (a) the combination or use of the Deliverables with other products or components, to the extent that the infringement arises from such combination or use; (b) modification of the Deliverables by anyone other than Altera and its authorized distributors, (c) the use of other than the most recent version of the Deliverables if the infringement or claim would have been avoided (or the likelihood thereof reduced) by use of the most recent version; (d) requirements specified by Licensee; (e) use of Deliverables in any way not contemplated under this Agreement; or (f) any unauthorized use of the Deliverables, to the extent that Altera has indicated that third-party licenses may be required to use such Deliverables.
10.4 The provisions of this Section 10 state the entire liability and obligations of Altera, and Licensee’s sole and exclusive rights and remedies, with respect to any proceeding or claim relating to infringement of any intellectual property right.
11.Limitations of Liability: Notwithstanding anything in this Agreement to the contrary, to the extent permitted by law:
11.1 In no event shall the aggregate liability of Altera relating to this Agreement or the subject matter hereof under any legal theory (whether in tort, contract or otherwise), including any liability under Section 10 of this Agreement or for any loss or damages directly or indirectly suffered by Licensee relating to the Deliverables, exceed the aggregate amount of the license fees actually paid by Licensee in the previous one (1) year under this Agreement.
11.2 IN NO EVENT SHALL ALTERA BE LIABLE UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE (a) FOR ANY LOST PROFITS, LOST REVENUE, OR LOST OR INTERRUPTION OF BUSINESS, (b) FOR ANY LOSS OF OR DAMAGES TO OTHER SOFTWARE OR DATA, OR (c) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, INCLUDING BUT NOT LIMITED TO THE USE, SUPPORT, OPERATION, OR FAILURE OF THE DELIVERABLES, WHETHER OR NOT FORESEEABLE AND EVEN IF ALTERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND DAMAGES.
11.3 The limitations set forth in Sections 11.1 and 11.2 above shall apply notwithstanding any failure of essential purpose of any limited remedy stated herein.
11.4 Altera is willing to enter into this Agreement only in consideration of and in reliance upon the provisions contained herein limiting Altera’s exposure to liability.Such provisions constitute an essential part of the bargain underlying this Agreement and have been reflected in the consideration agreed upon by the Parties.Both Parties understand and agree that the exclusion of warranties, limitation of liability, and the limitation of remedies allocate risks between the Parties as authorized under applicable law.
11.5 To the extent that the Deliverables are developed by a third party or derived from third-party software, no such third party provides any representations or warranties with respect to the Deliverables, assumes any liability regarding use of the Deliverables, or undertakes to furnish Licensee any support or information relating to the Deliverables.Notwithstanding anything herein to the contrary, Licensee agrees that Altera may disclose Licensee’s identity by name and address, and identify the Deliverables licensed, to the extent required by agreement with its licensors and partners.
12.1 Altera shall have a right to audit any Licensee records to confirm Licensee’s compliance with its obligations under this Agreement.Such audit (a) shall be conducted at Licensee’s facilities at reasonable times upon reasonable prior written notice as needed to verify Licensee’s compliance with its obligations under this Agreement, and (b) shall not unreasonably interfere with Licensee’s normal business operations.This Section 12.1 shall survive for one (1) year after expiration or termination of this Agreement.
12.2 Licensee may not sublicense, assign, or transfer this Agreement or the licenses granted, or any rights, duties, or obligations hereunder, or any Deliverables, whether by operation or law or otherwise, or disclose any trade secrets or Confidential Information embodied in the Deliverables, except as expressly provided in this Agreement. Any attempt to sublicense, assign, or otherwise transfer without prior written consent of the other Party any of the rights, duties, or obligations hereunder is void.For the purposes of this Section, a change in the persons or entities that directly or indirectly control fifty percent (50%) or more of the equity securities or beneficial or voting interest of Licensee shall be considered an assignment by Licensee and shall require the other Party’s prior written consent, which shall not be unreasonably withheld.
12.3 Licensee shall not export or re-export, directly or indirectly, the Deliverables, any part thereof, or the direct product thereof, including Licensed Products, without first obtaining any necessary U.S. or other governmental licenses and approvals.Licensee hereby gives its assurance to Altera that it will not knowingly, unless prior authorization is obtained from the appropriate U.S. governmental body, re-export, directly or indirectly, the Deliverables, any part thereof, or the direct product thereof, to any the countries or nationals thereof listed in Country Group E:1, as such list may be amended from time to time by the U.S. Department of Commerce and/or U.S. Treasury Department (which list currently includes Cuba, Iran, North Korea, Sudan, Syria) or (b) to any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government.Licensee further agrees that no products, propriety data, know-how, software, or other data or information received from Altera will be directly employed in missile technology, sensitive nuclear, chemical or biological weapons end uses or by such end users.Licensee understands that the foregoing obligations are U.S. legal requirements and agree that they shall survive any term or termination of this Agreement.
12.4 This Agreement is entered into for the benefit of Altera and its licensors and all rights granted to Licensee and all obligations owed to Altera shall be enforceable by Altera.
12.5 It is expressly agreed that the validity and construction of this Agreement, and performance hereunder, shall be governed by the laws of the State of New York, U.S.A.The Parties agree to submit to the jurisdiction of the courts in the State of California, County of Santa Clara, for the resolution of any dispute or claim arising out of or relating to this Agreement.
12.6 The Parties hereby agree that the Party who does not prevail with respect to any dispute, claim, or controversy relating to this Agreement shall pay the costs actually incurred by the prevailing Party, including any attorneys’ fees.
12.7 No amendment to this Agreement shall be effective unless it is in writing signed by a duly authorized representative of both Parties.The waiver of any breach or default shall not constitute a waiver of any other right hereunder.
12.8 If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party.Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
12.9 The article headings throughout this Agreement are for reference purposes only and the words contained therein shall not be construed as a substantial part of this Agreement and shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement.
12.1 BY USING THE DELIVERABLES OR ANY PART THEREOF, LICENSEE AND ALTERA ACKNOWLEDGE THAT LICENSEE AND ALTERA HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE AND ALTERA FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND ALTERA, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN LICENSEE AND ALTERA RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
12.11 Licensee agrees (on behalf of itself, its subsidiaries, and other affiliated parties) that neither it nor any of its subsidiaries or other affiliated parties will, whether during or after the term of this Agreement, institute any claim or action against Altera, or any subsidiaries or other affiliated parties of Altera, that is based in whole or in part on infringement (whether direct or contributory infringement, inducement to infringe, or otherwise) of any Licensee intellectual property rights in connection with the use, license, offer to license, importing, exporting, or otherwise disposing of the Deliverables, including any portion, enhancements, modifications, or derivative works thereof (collectively, “Subject Claims”), or authorize any third party to file any Subject Claims. This covenant shall extend to any Subject Claims against third-party manufacturers, suppliers, distributors, resellers, partners, customers, and other licensees of Altera or any subsidiaries or other affiliated parties of Altera. This covenant shall apply to and be binding on any assignees, licensees, or other transferees of Licensee’s intellectual property rights. To the extent that such covenant shall not automatically be binding on any such assignees, licensees, or other transferees, the assigning party shall cause such covenant to be so binding and shall indemnify and hold harmless Altera, or any subsidiaries or other affiliated parties of Altera, against all damages, costs, expenses, and other liabilities (including attorneys’ fees) incurred by Altera, or any subsidiaries or other affiliated parties of Altera, that result from or relate to any failure to cause such covenant to be so binding. 12.12 If Licensee is an agency or instrumentality of the United States Government, the Deliverables are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Deliverables are governed by the terms of this Agreement. Contractor/manufacturer is Altera Corporation, 101 Innovation Drive, San Jose, CA 95134 and its licensors.
[End of MEGACORE FUNCTION LICENSE TERMS AND CONDITIONS]