SOFTWARE LICENSE AGREEMENT

IMPORTANT – PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT. AFTER YOU READ THIS LICENSE AGREEMENT, YOU WILL BE ASKED WHETHER YOU ACCEPT AND AGREE TO THE TERMS OF THIS LICENSE AGREEMENT. DO NOT CLICK “I HAVE READ AND AGREE” UNLESS: (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS LICENSE AGREEMENT ON BEHALF OF YOURSELF AND YOUR COMPANY; AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS LEGALLY BINDING AGREEMENT ON BEHALF OF YOURSELF AND YOUR COMPANY.

Important – Read carefully: This software license agreement (“Agreement”) is a legal agreement between you (either an individual or entity) and Nuvation Research Corporation (“Nuvation”). The “Licensed Materials” subject to this Agreement include the software programs Nuvation has granted you access to download and any “on-line” or electronic documentation associated with these programs, or any portion thereof, as well as any updates or upgrades to such software programs and documentation, if any, or any portion thereof, provided to you at Nuvation’s sole discretion. The Licensed Materials are specifically designed and licensed for use solely and exclusively with i) digital signal processing devices manufactured by or for TI for which the Licensed Materials are specifically designated (“TI Devices”) and ii) devices manufactured by or for Xilinx for which the Licensed Materials are specifically designated (“Xilinx Devices”). By installing, copying or otherwise using the Licensed Materials you agree to abide by the following provisions. This Agreement is displayed for you to read prior to using the Licensed Materials. If you choose not to accept or agree with these provisions, do not download or install the Licensed Materials.

1.  Definitions.  When used in this Agreement, the following terms shall have the respective meanings indicated below.  Additional terms may be defined throughout this Agreement.

a.  “Customer” means either an OEM or ODM.

b.  “Customer Product” means a product that (i) consists of both hardware and software components, including executable only versions of the Licensed Materials, or any derivative thereof, that execute solely and exclusively on TI Devices and/or Xilinx Devices and not on devices manufactured by or for an entity other than TI or Xilinx, (ii) is sold by or for a Customer and (iii) is not a development kit.

c. “ODM” means an original design manufacturer that designs, manufactures, and/or distributes products or product designs to OEMs.

d. “OEM” means an original equipment manufacturer that distributes products bearing such OEM’s brand name and part number to final end users.

e. “Nuvation Licensee Customer” means a Customer who has a current software license with Nuvation that covers the Licensed Materials and which grants the right to distribute Customer Products.

2.  License Grant and Use Restrictions.  

a.  Limited Source Code License.  Subject to the terms of this Agreement, Nuvation hereby grants to you a royalty-free, fully paid-up, non-transferable, non-exclusive, non-assignable, non-sublicensable license to make copies, prepare derivative works, display internally and use internally the Licensed Materials provided to you in source code for the sole purpose of developing object and executable versions of such Licensed Materials or any derivative thereof, that execute solely and exclusively on TI Devices and/or Xilinx Devices, for end use in Customer Products that are not development kits, and maintaining and supporting such Licensed Materials, or any derivative thereof, and Customer Products. 
           
b.  Demonstration License.  Subject to the terms of this Agreement, Nuvation grants to you a royalty-free, fully paid-up, non-transferable, non-exclusive, non-assignable, non-sublicensable worldwide license to demonstrate to third parties the Licensed Materials, or any derivative thereof, as they are used in Customer Products executing solely and exclusively on TI Devices and/or Xilinx Devices, provided that such Licensed Materials, or any derivative thereof, are demonstrated in object or executable versions only and are not left with or retained by such third parties.

c.  Distribution License.  Subject to the terms of this Agreement, Nuvation hereby grants to you a non-exclusive, non-transferable, non-assignable, worldwide, royalty-free, fully paid-up, and non-sublicensable license to make, use, sell, offer to sell, and otherwise distribute source and object code only versions of the Licensed Materials, or any derivative thereof, to Nuvation Licensee Customers for use in Customer Products, provided that such Customer Products include only embedded executable copies of such Licensed Materials, or derivatives thereof, that execute solely and exclusively on TI Devices and/or Xilinx Devices.

d.  Contractors and Suppliers.  The licenses granted to you hereunder shall include your on-site and off-site suppliers and independent contractors, while such suppliers and independent contractors are performing work for or providing services to you, provided that such suppliers and independent contractors have executed agreements with you containing terms and conditions not inconsistent with the terms and conditions set forth is this Agreement.

e.  Limited License to Nuvation and Covenant not to Sue.  Continuing for the term of this Agreement, you hereby grant to Nuvation and its licensors under any of your patents embodied in the Licensed Materials a non-transferable, non-exclusive, non-assignable, worldwide, fully paid-up, royalty-free license to make, use, sell, offer to sell, import, export and otherwise distribute such Licensed Materials. 
      
f.   No Other License.  Notwithstanding anything to the contrary, nothing in this Agreement shall be construed as a license to any intellectual property rights of Nuvation other than those rights embodied in the Licensed Materials provided to you by Nuvation.  EXCEPT AS PROVIDED HEREIN, NO OTHER LICENSE, EXPRESS OR IMPLIED, BY ESTOPPEL OR OTHERWISE, TO ANY OTHER NUVATION INTELLECTUAL PROPERTY RIGHTS IS GRANTED HEREIN.

g.  Restrictions.  You shall maintain the source code versions of the Licensed Materials under password control protection and shall not disclose such source code versions of the Licensed Materials, or any derivative thereof, to any person other than your employees and contractors whose job performance requires access.  You shall not use the Licensed Materials, or any modification or derivative thereof, with a processing device or device manufactured by or for an entity other than TI or Xilinx, and you agree that any such unauthorized use of the Licensed Materials, or any modification or derivative thereof, is a material breach of this Agreement.  You will not sublicense, transfer, or assign the Licensed Materials, or any derivative thereof, or your rights under this Agreement to any third party.  You shall not (i) incorporate, combine, or distribute the Licensed Materials, or any derivative thereof, with any Public Software, or (ii) use Public Software in the development of any derivatives of the Licensed Materials, each in such a way that would cause the Licensed Materials, or any derivative thereof, to be subject to all or part of the license obligations or other intellectual property related terms with respect to such Public Software, including but not limited to, the obligations that the Licensed Materials, or any derivative thereof, incorporated into, combined, or distributed with such Public Software (x) be disclosed or distributed in source code form, be licensed for the purpose of making derivatives of such software, or be redistributed free of charge, contrary to the terms and conditions of this Agreement, (y) be used with devices other than TI Devices and/or Xilinx Devices, or (z) be otherwise used or distributed in a manner contrary to the terms and conditions of this Agreement.  As used in this Section 2(g), “Public Software” means any software that contains, or is derived in whole or in part from, any software distributed as open source software, including but not limited to software licensed under the following or similar models:  (A) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (B) the Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun Community Source License (SCSL), (F) the Sun Industry Standards Source License (SISL), (G) the Apache Server license, (H) QT Free Edition License, (I) IBM Public License, and (J) BitKeeper.

h.   Term and Termination.  The term of this Agreement shall begin on the date you accept and agree to the terms and conditions of this Agreement and shall continue for two (2) years thereafter.  At the expiration of the initial two (2) year period, this Agreement shall automatically renew for additional periods of one (1) year, unless either party notifies the other, in writing, not less than sixty (60) days prior to the expiration of the original two (2) year period or expiration of any renewal period, of its desire to terminate this Agreement.  You may terminate this Agreement at any time by written notice to Nuvation.  Without prejudice to any other rights, if you fail to comply with the terms of this Agreement, Nuvation may terminate your right to use the Licensed Materials, or any derivative thereof, and any applications generated using the Licensed Materials, or any derivative thereof, upon written notice to you.  In the event of termination of this Agreement for any reason and by any party, all licenses and rights granted herein with respect to the Licensed Materials are immediately terminated.  Upon termination of this Agreement, you will destroy any and all copies of the Licensed Materials, including any derivatives thereof, in your possession, custody or control and provide to Nuvation a written statement signed by your authorized representative certifying such destruction.  The following sections will survive any expiration or termination of this Agreement: 2(h) (Term and Termination), 3 (Ownership), 6 (Warranties and Limitations), 7 (Indemnification Disclaimer), 10 (Export Control), 11 (Governing Law and Severability), 12 (PRC Provisions), and 13 (Entire Agreement). The obligations set forth in Section 5 (Confidential Information) will survive any expiration or termination of this Agreement for three (3) years after such expiration or termination.

3.   Licensed Materials Ownership.  The Licensed Materials are licensed, not sold to you, and can only be used in accordance with the terms of this Agreement.  Subject to the licenses granted to you pursuant to this Agreement, Nuvation and Nuvation’s licensors own and shall continue to own all right, title, and interest in and to the Licensed Materials, including all copies thereof.  The parties agree that all fixes, modifications and improvements to the Licensed Materials conceived of or made by Nuvation that are based, either in whole or in part, on your feedback, suggestions or recommendations are the exclusive property of Nuvation and all right, title and interest in and to such fixes, modifications or improvements to the Licensed Materials will vest solely in Nuvation. Subject to Nuvation’s, TI’s, Xilinx’s and their licensors’ underlying intellectual property interest in the Licensed Materials, you shall own all right, title and interest in and to any and all derivatives developed solely by you. You acknowledge and agree that regardless of the changes made to the Licensed Materials, your right to use any and all derivatives of the Licensed Materials shall remain subject to the terms and conditions of this Agreement.  Moreover, you acknowledge and agree that when your independently developed software or hardware components are combined, in whole or in part, with the Licensed Materials, or any derivative thereof, your right to use the Licensed Materials, or any derivative thereof, embodied in such resulting combined work shall remain subject to the terms and conditions of this Agreement.
        
4.   Intellectual Property Rights.  The Licensed Materials contain copyrighted material, trade secrets and other proprietary information of Nuvation and Nuvation’s licensors and are protected by copyright laws, international copyright treaties, and trade secret laws, as well as other intellectual property laws.  To protect Nuvation’s and Nuvation’s licensors’ rights in the Licensed Materials provided in an object code only format, you agree, except as specifically permitted by statute by a provision that cannot be waived by contract, not to “unlock”, decompile, reverse engineer, disassemble or otherwise translate any such object code portions of the Licensed Materials to a human-perceivable form nor to permit any person or entity under your control to do so.  You shall not remove, alter, cover, or obscure any confidentiality, trade secret, proprietary, or copyright notices, trade-marks, proprietary, patent, or other identifying marks or designs from any component of the Licensed Materials and you shall reproduce and include in all copies of the Licensed Materials the copyright notice(s) and proprietary legend(s) of Nuvation and Nuvation’s licensors as they appear in the Licensed Materials, and cause any person or entity under your employ or control to do the same.  Nuvation reserves all rights not specifically granted under this Agreement.

You acknowledge and agree that this Agreement does not convey a license to any third party patents, copyrights, and other intellectual property rights and that you are solely responsible for any patent, copyright, or other intellectual property right claims that relate to your use and distribution of the Licensed Materials, or any derivative thereof, and your use and distribution of your products that include or incorporate the Licensed Materials, or any derivative thereof. 

5.   Confidential Information.  You acknowledge and agree that the Licensed Materials, and any derivative thereof, contain trade secrets and other confidential information of Nuvation.  You agree to use the Licensed Materials, or any derivative thereof, solely within the scope of the licenses set forth herein, to maintain the Licensed Materials, or any derivative thereof, in strict confidence, to use at least the same procedures and degree of care that you use to prevent disclosure of your own confidential information of like importance but in no instance less than reasonable care, and to prevent disclosure of the Licensed Materials, or any derivative thereof, to any third party, except as may be necessary and required in connection with your rights and obligations hereunder.  You agree to obtain executed confidentiality agreements with your employees and contractors having access to the Licensed Materials, or any derivative thereof, and to diligently take steps to enforce such agreements in this respect.  Nuvation agrees that the employment agreements having confidentiality obligations for third party confidential information used in the normal course of your business shall satisfy the requirements of this section. Nuvation may disclose your contact information to Nuvation’s applicable licensors.

6.   Warranties and Limitations.  THE LICENSED MATERIALS ARE PROVIDED “AS IS”.  NUVATION MAKES NO WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED MATERIALS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS.  YOU AGREE TO USE YOUR INDEPENDENT JUDGMENT IN DEVELOPING YOUR PRODUCTS AND DERIVATIVES OF THE LICENSED MATERIALS.  NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS A WARRANTY OR REPRESENTATION BY NUVATION TO MAINTAIN PRODUCTION OF ANY NUVATION, TI OR XILINX SEMICONDUCTOR DEVICE OR OTHER HARDWARE OR SOFTWARE WITH WHICH THE LICENSED MATERIALS MAY BE USED. 

IN NO EVENT SHALL NUVATION, OR ANY APPLICABLE LICENSOR, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF, REGARDLESS OF WHETHER NUVATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF USE OR INTERRUPTION OF BUSINESS.  IN NO EVENT WILL NUVATION’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF YOUR USE OF THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF, EXCEED FIVE HUNDRED U.S. DOLLARS (US$500).

Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages or limitation on how long an implied warranty lasts, the above limitations or exclusions may not apply to you.

7.   Indemnification Disclaimer.  YOU ACKNOWLEDGE AND AGREE THAT BOTH NUVATION AND ITS LICENSORS SHALL NOT BE LIABLE FOR AND SHALL NOT DEFEND OR INDEMNIFY YOU AGAINST ANY THIRD PARTY INFRINGEMENT CLAIM THAT RELATES TO OR IS BASED ON YOUR MANUFACTURE, USE, OR DISTRIBUTION OF THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF, OR YOUR MANUFACTURE, USE, OFFER FOR SALE, SALE, IMPORTATION OR DISTRIBUTION OF YOUR PRODUCTS THAT INCLUDE OR INCORPORATE THE LICENSED MATERIALS, OR ANY DERIVATIVE THEREOF.

8.   No Technical Support.  Nuvation and Nuvation’s licensors are under no obligation to install, maintain or support the Licensed Materials, or any derivatives thereof. 

9.   Notices.  3590 North First Street, Unit 210, San Jose, CA  95134, Attention: Law Department. All notices shall be deemed served when received by Nuvation.  

10. Export Control.  You hereby acknowledge that the Licensed Materials are subject to export control under the U.S. Commerce Department’s Export Administration Regulations (“EAR”).  You further hereby acknowledge and agree that unless prior authorization is obtained from the U.S. Commerce Department, neither you nor your customers will export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the EAR), received from Nuvation, or export, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export, or release of the technology, software, or software source code, or direct product is prohibited by the EAR.  You agree that none of the Licensed Materials may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan and Syria or any other country the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List or Entity List.  You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you will not use or transfer the Licensed Materials for use in any sensitive nuclear, chemical or biological weapons, or missile technology end-uses unless authorized by the U.S. Government by regulation or specific license or for a military end-use in, or by any military entity of Albania, Armenia, Azerbaijan, Belarus, Cambodia, China, Georgia, Iraq, Kazakhstan, Kyrgyzstan, Laos, Libya, Macau, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and Vietnam.  Any software export classification made by Nuvation shall be for Nuvation’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such software or whether an export license or other documentation is required for the exportation of such software.

11. Governing Law and Severability.  This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without reference to conflict of laws principles.  If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA), as may be enacted in the State of California.  The parties agree that non-exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the courts located in Santa Clara County in the State of California.  Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and either party may seek injunctive relief in any United States or foreign court.

12. PRC Provisions.  If you are located in the People’s Republic of China (“PRC”) or if the Licensed Materials will be sent to the PRC, the following provisions shall apply and shall supersede any other provisions in this Agreement concerning the same subject matter as the following provisions: 

a. Registration Requirements.  You shall be solely responsible for performing all acts and obtaining all approvals that may be required in connection with this Agreement by the government of the PRC, including but not limited to registering pursuant to, and otherwise complying with, the PRC Measures on the Administration of Software Products, Management Regulations on Technology Import-Export, and Technology Import and Export Contract Registration Management Rules.  Upon receipt of such approvals from the government authorities, you shall forward evidence of all such approvals to Nuvation for its records.  In the event that you fail to obtain any such approval or registration, you shall be solely responsible for any and all losses, damages or costs resulting therefrom, and shall indemnify Nuvation for all such losses, damages or costs.

b.  Governing Language.  This Agreement is written and executed in the English language.  If a translation of this Agreement is required for any purpose, including but not limited to registration of the Agreement pursuant to any governmental laws, regulations or rules, you shall be solely responsible for creating such translation.  Any translation of this Agreement into a language other than English is intended solely in order to comply with such laws or for reference purposes, and the English language version shall be authoritative and controlling.

c.  Export Control.

(i) Diversions of Technology.  You hereby agree that unless prior authorization is obtained from the U.S. Department of Commerce, neither you nor your subsidiaries or affiliates shall knowingly export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce ("EAR")), received from Nuvation or any of its affiliated companies, or export, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export, or release of the technology, software, software source code, or direct product is prohibited by the EAR.

(ii) Assurance of Compliance.  You understand and acknowledge that products, technology (regardless of the form in which it is provided), software or software source code, received from Nuvation or any of its affiliates under this Agreement may be under export control of the United States or other countries.  You shall comply with the United States and other applicable non-U.S. laws and regulations governing the export, re-export and release of any products, technology, software, or software source code received under this Agreement from Nuvation or its affiliates.  You shall not undertake any action that is prohibited by the EAR.  Without limiting the generality of the foregoing, you specifically agree that you shall not transfer or release products, technology, software, or software source code of Nuvation or its affiliates to, or for use by, military end users or for use in military, missile, nuclear, biological, or chemical weapons end uses.

(iii) Licenses.  Each party shall secure at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this Agreement.  If such licenses or government approvals cannot be obtained, Nuvation may terminate this Agreement, or shall otherwise be excused from the performance of any obligations it may have under this Agreement for which the licenses or government approvals are required.