CAREFULLY READ THIS DESIGN LICENSE AGREEMENT ("AGREEMENT"). BY CLICKING THE "ACCEPT" OR "AGREE" BUTTON, OR OTHERWISE ACCESSING, DOWNLOADING, INSTALLING OR USING THE LICENSED MATERIALS (DEFINED BELOW), YOU AGREE ON BEHALF OF LICENSEE TO BE BOUND BY THIS AGREEMENT. "LICENSEE" MEANS THE CORPORATION OR OTHER LEGAL ENTITY TO WHICH XILINX, INC., A DELAWARE CORPORATION ("XILINX") HAS ISSUED THE LICENSE DESCRIBED HEREIN. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT" OR "AGREE" BUTTON, AND DO NOT ACCESS, DOWNLOAD, INSTALL OR USE THE LICENSED MATERIALS.
The parties agree as follows:
- Definitions
"Affiliate" means an entity which controls, is controlled by or is under common control with a party hereto; where "control" means that the controlling party directly or indirectly has the beneficial ownership of more than fifty percent of the controlled entity’s shares or ownership interest giving the power to direct or cause the direction of the general management of the controlled entity. An entity shall be an Affiliate only during the time when such control exists.
"Licensed Materials" means, as applicable, all Xilinx reference designs, application notes, documentation, software, design files, application program interfaces, and any related characterization, qualification or test data and information, that are provided by Xilinx to Licensee pursuant to this Agreement.
"Xilinx Device" means FPGA, PLD, SoC, configurable memory or other semiconductor devices that Xilinx designs and sells directly or through one or more of Xilinx’s authorized distributors.
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License Grants. Subject to the terms and conditions of this Agreement, Xilinx hereby grants Licensee the following nonexclusive, nontransferable licenses:
2.1 Use Rights: Licensee may internally reproduce and use the Licensed Materials for the sole purpose of creating designs that are programmed into a Xilinx Device; and
2.2. Modification Rights: Subject to Section 4 (Ownership), Licensee may modify, change, improve and enhance any portion of the Licensed Materials that is provided by Xilinx in source code form, but only for the sole purpose of creating designs that are programmed into a Xilinx Device; and
2.3 Distribution Rights: Licensee may reproduce and distribute the Licensed Materials, solely in binary form for use to program a Xilinx Device that operates in Licensee's system-level hardware products.
Licensee may allow any of its Affiliates to exercise the rights granted to Licensee above, and Licensee and its Affiliates may disclose the Licensed Materials to contractors performing services for Licensee and/or its Affiliates; provided however, that Licensee shall be liable for any failure of Affiliates or contractors to the abide by the terms and conditions of this Agreement as if such failure was the failure of Licensee.
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Restrictions.
3.1 Licensee shall not use the Licensed Materials for any purpose other than in compliance with Section 2.1 (Use Rights), or allow use by any person other than in compliance with Section 2.3 (Distribution Rights).
3.2 Licensee shall not reproduce the Licensed Materials other than to the extent necessary for its authorized use or distribution of the Licensed Materials (per Section 2 above), and for archival and back-up purposes, provided always that Licensee will at all times and in each instance, reproduce all copyright notices and proprietary legends on each copy in the same manner as such notices and legends appeared on the original.
3.3 Licensee shall not distribute or provide Licensed Materials to a third party, other than in compliance with Section 2.3 (Distribution Rights).
3.4 Licensee shall not publish or disclose the results of any benchmarking of the Licensed Materials, or use such results for its own competing development activities.
3.5 Licensee shall not decrypt, decompile, reverse-engineer, disassemble, or otherwise reduce to a human-perceivable form, or modify or alter, any portion of the Licensed Materials that are provided by Xilinx in object code, encrypted or other obfuscated form.
3.6 Licensee shall not hypothecate, rent, lease, loan, lend, time-share, sublicense or otherwise transfer the Licensed Materials.
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Ownership. Licensee acknowledges and agrees that all intellectual property and industrial rights in and to the Licensed Materials and all copies thereof are and will remain the sole property of Xilinx, or its licensors (if any). Nothing contained in this Agreement will be construed as conferring by implication, estoppel or otherwise upon Licensee any license or other right except the licenses and rights expressly granted to Licensee in Section 2 (License Grants). Licensee understands that portions of the Licensed Materials and related documentation may have been licensed to Xilinx from third parties and that such third parties are intended third-party beneficiaries of the provisions of this Agreement. The Licensed Materials are protected by laws and international treaty provisions covering intellectual property and industrial rights. All modifications, changes, improvements and enhancements to the Licensed Materials (collectively "Modifications") shall be the sole property of Xilinx. Licensee hereby assigns and agrees to assign to Xilinx Licensee's entire right, title and interest in and to the Modifications and all associated intellectual property rights, and Licensee shall acquire no greater rights therein than specifically provided for in this Agreement; provided however that Licensee shall have no obligation to disclose or provide such Modifications to Xilinx and "Modifications" do not include technology independently developed by Licensee that is added to or incorporated in the Licensed Materials. Licensee agrees that any Modifications are made solely at its own risk and that Xilinx accepts no liability whatsoever for any such Modifications.
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Confidentiality.
5.1 Duties. Except as otherwise expressly permitted in Section 2 (License Grants), Licensee shall (a) maintain the confidentiality of the Licensed Materials; and (b) not make the Licensed Materials available in any form to any person other than to its employees and contractors who have a genuine "need to know" on behalf of Licensee for purposes authorized by this Agreement, and who are bound by obligations of confidentiality no less protective of Xilinx (and its licensors, if any) than those contained herein. Licensee represents to Xilinx that it maintains a system of confidentiality consistent with commonly accepted practices to protect its own confidential business information, including written agreements with employees and contractors, and that the Licensed Materials will be protected by such a system to the same extent, but in no event with less than reasonable care. Licensee shall be liable to Xilinx for any failure of its contractors to comply with the terms and conditions of the Agreement as if such failure was a failure of the Licensee. Licensee agrees that a breach of this Agreement may result in irreparable and continuing damage to Xilinx for which there may be no adequate remedy at law, and Xilinx shall be entitled to seek injunctive relief and/or a decree for specific performance, and such other relief (including monetary damages) as may be proper.
5.2 Exceptions. The obligations of confidentiality under this Agreement shall not apply to information that: (a) is already known to Licensee at the time of disclosure without obligation of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of Licensee; (c) is rightfully received by Licensee from a third party without obligation of confidentiality; (d) is approved for release by written authorization of Xilinx; or (e) was developed by Licensee independently and without the use or benefit of the Licensed Materials.
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Disclaimers.
6.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, AND XILINX DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XILINX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED MATERIALS WILL MEET LICENSEE’S REQUIREMENTS, THAT THE LICENSED MATERIALS WILL OPERATE PROPERLY, WHETHER ALONE OR IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS, OR THAT THE OPERATION OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS OR DEFECTS IN THE LICENSED MATERIALS ARE CAPABLE OF BEING CORRECTED. XILINX MAKES NO WARRANTY OR REPRESENTATION THAT THE LICENSED MATERIALS ARE COMPLETED, TESTED, VERIFIED, OR WILL WORK ON THEIR OWN WITHOUT REVISIONS. LICENSEE IS SOLELY RESPONSIBLE FOR VERIFICATION OF ITS DESIGN. XILINX SPECIFICALLY DISCLAIMS ANY OBLIGATIONS FOR TECHNICAL SUPPORT AND BUG FIXES, AS WELL AS ANY LIABILITY ARISING FROM LICENSEE’S USE OF THE LICENSED MATERIALS.
6.2 LICENSEE ACKNOWLEDGES THAT USE OF THE LICENSED MATERIALS IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS MAY REQUIRE LICENSES FROM THIRD PARTIES AND LICENSEE ACCEPTS SOLE RESPONSIBILITY FOR OBTAINING SUCH LICENSES.
6.3 THE LICENSED MATERIALS ARE NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR FOR USE IN ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS APPLICATIONS RELATED TO LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, DEPLOYMENT OF AIRBAGS, CONTROL OF VEHICLE OR AIRCRAFT (UNLESS THERE IS A FAIL-SAFE OR REDUNDANCY FEATURE WHICH DOES NOT INCLUDE USE OF SOFTWARE IN THE XILINX DEVICE TO IMPLEMENT THE REDUNDANCY AND A WARNING SIGNAL UPON FAILURE TO THE OPERATOR), OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, "CRITICAL APPLICATIONS"). LICENSEE AGREES, PRIOR TO USING OR DISTRIBUTING ANY SYSTEMS THAT INCORPORATE THE LICENSED MATERIALS, TO THOROUGHLY TEST THE SAME FOR SAFETY PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF THE LICENSED MATERIALS IN CRITICAL APPLICATIONS.
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Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) IN NO EVENT SHALL XILINX OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, GOODWILL, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE LICENSED MATERIALS, IN WHOLE OR IN PART, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY; (2) IN NO EVENT SHALL THE ENTIRE LIABILITY OF XILINX OR ITS LICENSORS ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNT OF LICENSE FEES RECEIVED BY XILINX FROM LICENSEE FOR THE LICENSED MATERIALS; (3) THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY REGARDLESS OF WHETHER SUCH LOSS WAS REASONABLY FORESEEABLE OR IF XILINX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (4) THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY IN ANY WAY FOR ANY MATTER THAT CANNOT, AS A MATTER OF APPLICABLE LAW, BE LIMITED OR EXCLUDED. THE PARTIES AGREE THAT THIS SECTION 7 (LIMITATION OF LIABILITY) REPRESENTS AN ALLOCATION OF RISK WHICH THE PARTIES CONSIDER REASONABLE.
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Term and Termination.
8.1 Term. This Agreement will commence upon the date that Licensee clicks the “accept” or “agree” button or otherwise accesses, downloads, installs or uses the Licensed Materials, whichever occurs first, and will remain effective until terminated in accordance with this Section 8.
8.2 Termination by Licensee. Licensee may terminate this Agreement at any time for any or no reason by destroying the Licensed Materials and all copies and derivative works, and providing notice to Xilinx of same.
8.3 Termination by Xilinx. Xilinx may terminate this Agreement for material breach by Licensee, provided that Xilinx has given written notice to Licensee of such breach and Licensee fails to cure such breach within thirty (30) days thereof; provided, however, in the event of a breach of confidentiality under Section 5 whereby unauthorized disclosure and/or dissemination by electronic or other means is likely to cause undue harm to Xilinx, then Xilinx may, at its discretion, immediately terminate this Agreement and seek other appropriate equitable and legal remedies as deemed necessary to protect its interests hereunder.
8.4 Effects of Termination. Upon termination of this Agreement the licenses and rights granted by Xilinx hereunder will cease, and Licensee shall destroy the Licensed Materials, including all copies and derivative works in its possession or under its control, and all related documentation and certify such destruction in writing to Xilinx. Each party’s rights and obligations under the following provisions of this Agreement shall indefinitely survive the termination of this Agreement: Sections 4 (Ownership); 5 (Confidentiality); 6 (Disclaimers); 7 (Limitation of Liability), 8.4 (Effects of Termination); and 9 (General).
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General.
9.1 Governmental Use. The Licensed Materials are comprised of commercial computer software developed exclusively at the expense of Xilinx. Accordingly, pursuant to the U.S. government’s Federal Acquisition Regulations (FAR) Section 12.212 and Defense FAR Supplement (DFARS) Section 227.7202, use, duplication and disclosure of the Licensed Materials by or for the U.S. government is subject to the restrictions set forth in this Agreement. Manufacturer is Xilinx, Inc., 2100 Logic Drive, San Jose, CA 95124.
9.2 Export Compliance. Licensee shall adhere to all applicable import and export laws and regulations of Licensee’s country and of the United States, without limitation. This Agreement may involve items and information that are subject to the U.S. government’s International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR). The importer/exporter of record shall not export, reexport, resell, transfer, or disclose, directly or indirectly, any products or technical data, to any proscribed person, entity, or country, or foreign persons thereof, unless properly authorized by the U.S. government and/or any other applicable or relevant government or regulatory body.
9.3 Governing Law. (a) Where the Licensee is located in North America, South America or any other location not covered by (b) or (c) below: This Agreement, and its performance shall be interpreted by, construed according to, and governed by, the laws of the State of California excluding conflict of laws rules and principles and the competent courts located in Santa Clara County, California shall have jurisdiction; (b) Where the Licensee is located in Europe, the Middle East or Africa (EMEA) region: This Agreement, and its performance shall be interpreted by, construed according to, and governed by, the laws of Ireland excluding conflict of laws rules and principles and the competent Irish courts shall have jurisdiction; (c) Where the Licensee is located in the Asia Pacific region, Australia or New Zealand: This Agreement, and its performance shall be interpreted by, construed according to, and governed by, the laws of Singapore excluding conflicts of laws rules and principles and the competent Singapore courts shall have jurisdiction. The parties specifically exclude from application to this Agreement the United Nations Convention on contracts for the International Sale of Goods. Where the Licensee is an individual, he or she shall be deemed to be located in his or her usual place of residence. Where the Licensee is a corporation or any other legal entity, it shall be deemed to be located in the jurisdiction of its incorporation or other formation.
9.4 Assignment. Licensee shall not assign this Agreement or transfer any of the rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Xilinx. Any merger, acquisition, reorganization, change of control, or the like, involving Licensee shall be deemed an assignment in violation of the foregoing. Subject to the foregoing, this Agreement will be for the benefit of Xilinx and its successors and assigns, and will be binding on Licensee’s permitted assignees.
9.5 Waiver; Amendment. No waiver, express or implied, by either party of any right or remedy for any breach by the other party of any provision of this Agreement will be deemed or construed to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself or of any other breach or provision. No waiver of or modification or amendment to this Agreement will be effective unless reduced to writing and executed by authorized representatives of the parties.
9.6 Severability. If any provision of this Agreement is found unenforceable, illegal, void or invalid in whole or in part, then it shall to that extent be deemed not to form part of this Agreement and the remainder of the Agreement will remain in full force and effect.
9.7 Notices. Any notices required or permitted by this Agreement shall be in writing and delivered to the address provided by each party to the other in connection with this Agreement, or to such other address as either party may specify in writing. Notices to Xilinx shall be addressed to the attention of: Xilinx, Inc., Attn: General Counsel, Legal Department, 2100 Logic Drive, San Jose, CA 95124.
9.8 Entire Agreement. This Agreement represents and constitutes the entire agreement between the parties with respect to the Licensed Materials, and supersedes all prior or contemporaneous discussions, representations, arrangements, understandings or agreements, written or oral, regarding the subject matter hereof. No additional terms or modifications proposed by Licensee shall be binding on Xilinx unless expressly agreed to in writing and signed by Xilinx.
XILINX CONFIDENTIAL
2019.04