LA_OPT42 v5 July 2017
IMPORTANT. Read the following NXP Software License Agreement (“Agreement”) completely. By any affirming action by you, you indicate that you accept the terms of this Agreement and you also acknowledge that you have the authority, on behalf of your company, to bind your company to such terms. You may then download or install the file.
This is a legal agreement between you (either as an individual or as an authorized representative of your employer) and NXP USA, Inc. (“NXP”). It concerns your rights to use this file and any accompanying written materials (the “Software”). In consideration for NXP allowing you to access the Software, you are agreeing to be bound by the terms of this Agreement. If you do not agree to all of the terms of this Agreement, do not activate or install the Software. If you change your mind later, stop using the Software and delete all copies of the Software in your possession or control. Any copies of the Software that you have already distributed, where permitted, and do not destroy will continue to be governed by this Agreement. Your prior use will also continue to be governed by this Agreement.
1. LICENSE GRANT.
Your rights to use this Software vary depending upon the particular version of the Software product that you obtained from NXP. If you do not remember this information you may contact the party from whom you obtained the Software or us at www.NXP.com. If you purchased an “Academic” license, then you may not use the Software for commercial purposes and you may only use the Software to teach and to perform research within an accredited educational institution. This information is also contained in the license file created when you install the Software (“License File”).
a. License Grant. This Software may include Digital Rights Management (“DRM”), which controls the rights you have to the Software by utilizing digital codes (“Keys”) that were issued to you by NXP and are contained in the License File. You will not take any action to circumvent this DRM or reverse engineer it in any way and you will only use the Software as the DRM allows. You have the right to use and reproduce this Software, in machine readable format only, for your internal use only, as allowed by the DRM, and subject to the payment of applicable fees to NXP.
b. Limited Distribution Rights NXP also grants to you the right to prepare derivative works of and to distribute Compilable Software (as defined below) in object (machine-readable) form only and only as part of your own software programs that add substantial value to the Compilable Software. You may only distribute the Compilable Software for execution on processors sold by NXP, directly or through distribution (“NXP Processor”). Compilable Software means the portion of the Software that is executable on a NXP Processor, such as an embedded operating system, standard or “MSL” libraries, runtime libraries, example code, Processor Expert Components, and stationery code, which is not your original work. Other components may also be distributed only if they are explicitly so marked in conjunction with that installed component.
c. Special Source Distribution Rights NXP also grants to you the additional right to prepare derivative works of and to distribute Compilable Software, which is explicity marked with the text “SOURCE DISTRIBUTION PERMISSIBLE as directed in EULA”, in source form and only as part of your own software programs that add substantial value to the Compilable Software. You may only distribute the Compilable Software for execution on a NXP Processor.
2. OTHER RESTRICTIONS. Subject to the license grant above, the following restrictions apply:
a. NXP reserves all rights not expressly granted herein.
b. You may not rent, lease, sublicense, lend or encumber the Software, unless otherwise expressly agreed to within this Agreement
c. You may not distribute, manufacture, have manufactured, sublicense or otherwise reproduce the Software for purposes other than intended in this Agreement.
d. You may not remove or alter any proprietary legends, notices, or trademarks contained in the Software,
e. The terms and conditions of this Agreement will apply to any Software updates, provided to you at NXP’s discretion, that replace and/or supplement the original Software, unless such update contains a separate license.
f. You may not translate, reverse engineer, decompile, or disassemble the Software provided to you solely in object code format (machine readable) except to the extent applicable law specifically prohibits such restriction. You will prohibit your sublicensees from translating, reverse engineering, decompiling, or disassembling the Software except to the extent applicable law specifically prohibits such restriction.
g. If you benchmark the Software against other programs, then you may not publicly disclose your results.
3. OPEN SOURCE. Any open source software included in the Software licensed herein is not licensed under the terms of this Agreement, but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the Lesser GNU General Public License. Your use of such open source software is subject to the terms of each applicable license. You must agree to the terms of each such applicable license, or you should not use the open source software. You will not take or fail to take any action that could subject the Software to an Excluded License. An Excluded License means any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (A) disclosed or distributed in source code form; (B) licensed for the purpose of making derivative works; or (C) redistributable at no charge.
4. COPYRIGHT. The Software is licensed to you, not sold. NXP owns the Software, and United States copyright laws and international treaty provisions protect the Software. Therefore, you must treat the Software like any other copyrighted material (e.g. a book or musical recording). You may not use or copy the Software for any other purpose than what is described in this Agreement. Except as expressly provided herein, NXP does not grant to you any express or implied rights under any NXP or third party patents, copyrights, trademarks, or trade secrets. Additionally, you must reproduce and apply any copyright or other proprietary rights notices included on or embedded in the Software to any copies made thereof, in whole or in part, if any. You may not remove any copyright notices of NXP incorporated in the Software.
5. TERM. If you purchased a term license, then the Software will automatically disable itself after the term expires. However, you may continue to distribute Compilable Software. If you purchased a perpetual license, then you may use the Software for as long as you like. NXP has the right to terminate this Agreement without notice and require that you stop using and delete all copies of the Software in your possession or control if you violate any of the terms or restrictions of this Agreement. NXP may terminate this Agreement should any of the Software become, or in NXP's reasonable opinion is likely to become, the subject of a claim of intellectual infringement or trade secret misappropriation. Upon termination, you must cease use of and destroy, the Software and confirm compliance in writing to NXP. Upon termination, the license granted pursuant to this Agreement immediately terminates and the provisions of Sections 4 through 22 will survive any termination of this Agreement.
6. PRODUCT SUGGESTIONS & SUPPORT. Unless otherwise indicated in a separate agreement, NXP is NOT obligated to provide any support, upgrades or new releases of the Software under this Agreement. If you wish, you may contact NXP and report problems and provide suggestions regarding the Software. You agree that NXP may use your suggestions to improve the Software. NXP has no obligation whatsoever to respond in any way to such a problem report or suggestion. NXP may make changes to the Software at any time, without any obligation to notify or provide updated versions of the Software to you.
7. WARRANTY. For a period of 90 days following delivery, NXP only warrants that the media on which the Software is provided, if any, will be free from defects in material and workmanship. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTY AGAINST INFRINGEMENT SPECIFIED IN THE UNIFORM COMMERCIAL CODE. ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, TO THE FULL EXTENT THESE MAY BE DISCLAIMED BY LAW. If the media is not as warranted, NXP will, at its option, and as your exclusive remedy, either refund the purchase price, repair, or replace with the same or equivalent Software that meet this warranty. NXP’s obligations to correct errors in the Software will be separately contained in a maintenance and support agreement.
8. YOUR INDEMNITY TO NXP. You agree to defend and indemnify, at your expense, NXP from any and all claims, liabilities, and costs (including reasonable attorney’s fees) related to (1) your use (including your sublicensee’s use, if permitted) of the Software or (2) your violation of the terms and conditions of this Agreement.
9. NXP’S INDEMNITY TO YOU. Subject to the limitations and exclusions stated below, NXP will defend any Covered Claim against you, and will indemnify only you for finally awarded damages that are attributed to the Covered Claim. “Covered Claim” means that portion of a lawsuit alleging that the Software directly infringes a U.S. patent or copyright, or misappropriates a trade secret. NXP will have no obligation to defend or indemnify you unless you: (i) promptly notifies NXP in writing as soon as reasonably practicable after you first become aware of the Covered Claim but in no event later than thirty (30) days; and (ii) give NXP sole control of the Covered Claim and all requested assistance for defending the Covered Claim. NXP will not be liable for the settlement of a Covered Claim made without NXP‘s prior written consent. NXP will have no obligation to defend or indemnify you if: (i) you or any third party has altered the Software, and the alleged infringement would not have occurred but for such alteration; (ii) you or any third party has combined the Software with any other products or elements not furnished by NXP, and the alleged infringement would not have occurred but for such combination; (iii) the use of other than a current release of Licensed Software; or (iv) the Software was designed or manufactured in compliance with standards issued by a public standards body, and the alleged infringement would not have occurred but for such standards. NXP will not be liable for damages in excess of (i) a reasonable royalty rate on the Software that is the subject of the Covered Claim, multiplied by (ii) the revenue derived by NXP from license to you of the Software. THIS SECTION CONTAINS (I) NXP’S ENTIRE LIABILITY AND ALL OBLIGATIONS RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION, AND (II) YOUR EXCLUSIVE REMEDIES AGAINST NXP FOR INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
10. LIMITATION OF LIABILITY. NXP’S TOTAL LIABILITY FOR ANY AND ALL COSTS, DAMAGES, CLAIMS, INDEMNIFIABLE CLAIMS, OR LOSSES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR PRODUCT(S) SUPPLIED UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE.
11. DISCLAIMER OF CERTAIN TYPES OF DAMAGES. IN NO EVENT WILL NXP BE LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, OR LOST PROFITS, SAVINGS, OR REVENUES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
12. COMPLIANCE WITH LAWS; EXPORT RESTRICTIONS. Each party shall comply with all applicable export and import control laws and regulations including but not limited to the US Export Administration Regulation (including prohibited party lists issued by other federal governments), Catch-all regulations and all national and international embargoes. Each party further agrees that it will not knowingly transfer, divert, export or re-export, directly or indirectly, any product, software, including software source code, or technology restricted by such regulations or by other applicable national regulations, received from the other party under this Agreement, or any direct product of such software or technical data to any person, firm, entity, country or destination to which such transfer, diversion, export or re-export is restricted or prohibited, without obtaining prior written authorization from the applicable competent government authorities to the extent required by those laws. This provision shall survive termination or expiration of this Agreement.
13. GOVERNMENT RIGHTS. The Licensed Software is a “Commercial Item” as defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. §227.7202, as applicable and are only licensed to U.S. Government end users with the rights as are set forth herein.
14. HIGH RISK ACTIVITIES. You acknowledge that the Software is not fault tolerant and is not designed, manufactured or intended by NXP for incorporation into products intended for use or resale in on-line control equipment in hazardous, dangerous to life or potentially life-threatening environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or weapons systems, in which the failure of products could lead directly to death, personal injury or severe physical or environmental damage (“High Risk Activities”). You specifically represent and warrant that you will not use the Software or any derivative work of the Software for High Risk Activities.
15. CHOICE OF LAW; VENUE; LIMITATIONS. You agree that the statutes and laws of the United States and the State of Texas, USA, without regard to conflicts of laws principles, will apply to all matters relating to this Agreement or the Software, and you agree that any litigation will be subject to the exclusive jurisdiction of the state or federal courts in Texas, USA. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or the Software must be filed within one (1) year after such claim or cause of action arose or be forever barred.
16. CONFIDENTIAL INFORMATION. You must treat the Software as confidential information and you agree to retain the Software in confidence perpetually, with respect to Software in source code form (human readable), or for a period of five (5) years from the date of termination of this Agreement, with respect to all other parts of the Software. During this period you may not disclose any part of the Software to anyone other than employees who have a need to know of the Software and who have executed written agreements obligating them to protect such Licensed Software to at least the same degree of care as in this Agreement. You agree to use the same degree of care, but no less than a reasonable degree of care, with the Software as you do with your own confidential information. You may disclose Software to the extent required by a court or under operation of law or order provided that you notify NXP of such requirement prior to disclosure, which you only disclose information required, and that you allow NXP the opportunity to object to such court or other legal body requiring such disclosure.
17. MONITORING. You will monitor the access to and use of the Software. With prior written notice and during Customer’s normal business hours, NXP may engage an internationally recognized accounting firm to review your software monitoring system and records deemed relevant by the internationally recognized accounting firm to confirm your compliance with the terms of this Agreement or U.S. or other local export laws. Such review may include CodeWarrior (or successor product) report log files that you will capture and provide at NXP’s request. You will make records available in electronic format and shall fully cooperate with data gathering to support the license review. NXP will bear the expense of any such review unless a material non-compliance is revealed. NXP will treat as confidential information all information gained as a result of any request or review and will only use or disclose such information as required by law or to enforce its rights under this Agreement.
18. PRODUCT LABELING. You are not authorized to use any NXP trademarks, brand names, or logos.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between you and NXP regarding the subject matter of this Agreement, and supersedes all prior communications, negotiations, understandings, agreements or representations, either written or oral, if any. This Agreement may only be amended in written form, executed by you and NXP.
20. SEVERABILITY. If any provision of this Agreement is held for any reason to be invalid or unenforceable, then the remaining provisions of this Agreement will be unimpaired and, unless a modification or replacement of the invalid or unenforceable provision is further held to deprive you or NXP of a material benefit, in which case the Agreement will immediately terminate, the invalid or unenforceable provision will be replaced with a provision that is valid and enforceable and that comes closest to the intention underlying the invalid or unenforceable provision.
21. NO WAIVER. The waiver by NXP of any breach of any provision of this Agreement will not operate or be construed as a waiver of any other or a subsequent breach of the same or a different provision.
22. ASSIGNMENT. No portion of this Agreement may be assigned or otherwise transferred by you, without NXP’s prior written consent. NXP may assign this Agreement, or any part of this Agreement, in its sole discretion.