IMPORTANT. Read the following NXP Evaluation/Demonstration License Agreement (“Agreement”) completely. By selecting the “I Accept” button at the end of this page, or by downloading, installing, or using the Licensed Materials, you indicate that you accept the terms of the Agreement and you acknowledge that you have the authority, for yourself or on behalf of your company, to bind your company to these terms. You may then download, install, and/or use the Licensed Materials. In the event of a conflict between the terms of this Agreement and any license terms and conditions for NXP’s proprietary software embedded anywhere in the Licensed Software file, the terms of this Agreement will control. If a separate license agreement for the Licensed Materials has been signed by you and NXP, then that agreement will govern your use of the Licensed Materials and will supersede this Agreement.
NXP EVALUATION/DEMONSTRATION LICENSE AGREEMENT
This is a legal agreement between your employer, of which you are an authorized representative, or, if you have no employer, you as an individual (“you” or “Licensee”), and NXP B.V. (“NXP”). It concerns your rights to use the software provided to you in binary or source code form and any accompanying written materials (the “Licensed Materials”). The Licensed Materials may include any updates or error corrections or documentation relating to the Licensed Materials provided to you by NXP under this Agreement. In consideration for NXP allowing you to access the Licensed Materials, 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 download, install, or use the Licensed Materials. If you change your mind later, stop using the Licensed Materials and delete or return all copies of the Licensed Materials in your possession or control. Your prior use will be governed by this Agreement.
1.1. “Affiliate” means any corporation or other legal entity that, at any time, directly or indirectly, Controls, is Controlled by, or is under common Control with NXP (but only as long as such Control exists). For the purpose of this definition, the term “Control” means (i) the beneficial ownership (whether direct or indirect) of more than fifty percent (50%) of the voting power of an entity or (ii) in the case of an entity that does not have outstanding voting shares or securities, the majority (i.e., more than fifty percent (50%)) of the equity interests in such entity is now or hereafter owned or controlled by another entity, either directly or indirectly.
1.2. “Evaluation Period” means the period starting on the date you install, download, or otherwise receive the Licensed Software and ending 90 days thereafter (except for Licensed Hardware and its related Licensed Software ending three (3) years).
1.3. “Intellectual Property Rights” means any and all rights under statute, common law or equity in and under copyrights, trade secrets, and patents (including utility models), and analogous rights throughout the world, including any applications for and the right to apply for, any of the foregoing.
1.4. “Licensed Hardware” means any hardware provided to you, including but not limited to evaluation boards, demonstration boards, evaluation samples, and any accompanying documentation.
1.5 “Licensed Material” means the Licensed Software, the Licensed Hardware or both.
1.6 “Licensed Software” means the software provided to you in binary or source code form and any accompanying documentation.
1.7 “Software Content Register” means the documentation accompanying the Licensed Software which identifies the contents of the Licensed Software, including but not limited to identification of any third party software.
2. LICENSE GRANT.
2.1. Subject to the terms and conditions of this Agreement, NXP, or an Affiliate, grants and agrees to grant you a temporary, personal, non-sublicensable, non-exclusive, non-transferable, revocable, fully paid-up, limited license during the Evaluation Period to use the Licensed Materials for your internal use, examination, testing, development, and validating, and exclusively in connection with your evaluation for use in a product containing a NXP hardware product (e.g. a microprocessor, microcontroller, or digital signal processor) supplied directly or indirectly from NXP (“Authorized System”).
2.2. You may demonstrate the Licensed Materials to your direct costumers as part of an Authorized System so long as such demonstration is directly controlled by you and without prior approval by NXP; however, to all other third parties only if NXP has provided its advance, written approval (e.g. email approval) of your demonstrating the Licensed Materials to specified third parties or at specified event(s). You may not leave the Licensed Materials with a direct customer or any other third party at any time.
2.3. You may use subcontractors on your premises to exercise your rights under Section 2.1 and 2.2 so long as you have an agreement in place with the subcontractor containing confidentiality restrictions no less stringent than those contained in this Agreement. You will remain liable for your subcontractors’ adherence to the terms of this Agreement and for any and all acts and omissions of such subcontractors with respect to this Agreement and the Licensed Materials.
3. LICENSE LIMITATIONS AND RESTRICTIONS.
3.1. The Licensed Materials are licensed to you, not sold. Title to Licensed Materials delivered hereunder remains vested in NXP or NXP's licensor and cannot be assigned or transferred. You will not, and will not permit any third party to: (a) use the Licensed Materials for commercial or revenue generating purposes; (b) copy, translate, modify or make derivative works of any portion of the Licensed Materials; (c) rent, disclose, publish, sell, assign, lease, lend, sublicense, market, transfer, distribute or otherwise provide third parties access to any portion of the Licensed Materials, except as expressly authorized in Section 2. This Agreement does not grant to you any implied rights under any NXP or third party intellectual property.
3.2. The license granted in Section 2 does not include any license, right, power or authority to cause the Licensed Software, in whole or in part, to be subject to Open Source Licensing Terms. You will not take or fail to take any action that could subject the Licensed Software to Open Source Licensing Terms. As used herein, “Open Source Licensing Terms” means terms in any license for software which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed with such software (a “Work”), any of the following: (a) the making available of source code or design information regarding the Work; (b) the granting of permission for creating derivative works regarding the Work; or (c) the granting of a license to any party under intellectual property rights regarding the Work. By means of example and without limitation, Open Source Licensing Terms include the following licenses or distribution models: (i) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (ii) the Artistic License (e.g. PERL), (iii) the Mozilla Public License, (iv) the Common Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards Source License (SISSL), and (vii) the Open Software License.
3.3. You may not translate, reverse engineer, decompile, or disassemble the Licensed Materials except to the extent applicable law specifically prohibits such restriction. You must prohibit your sub-licensees from translating, reverse engineering, decompiling, or disassembling the Licensed Materials except to the extent applicable law specifically prohibits such restriction.
3.4. You must reproduce any and all of NXP's (or its third party licensor’s) copyright notices and other proprietary legends on copies of Licensed Materials.
3.5. You have no distribution rights under this Agreement. Nevertheless, if you distribute the Licensed Software to the United States Government, then the Licensed Software is “restricted computer software” and is subject to FAR 52.227-19.
3.6. You grant to NXP a non-exclusive, non-transferable, irrevocable, perpetual, worldwide, royalty-free, sublicensable license under your Intellectual Property Rights to use without restriction and for any purpose any suggestion, comment or other feedback related to the Licensed Materials (including, but not limited to, error corrections and bug fixes).
3.7. You may not publish or distribute information, results or data associated with the use of the Licensed Materials to anyone other than NXP; however, you must advise NXP of any results obtained including any problems or suggested improvements thereof. NXP retains the right to use such results and related information in any manner it deems appropriate.
4. OPEN SOURCE. Open source software included in the Licensed Software is not licensed under the terms of this Agreement but is instead licensed under the terms of the applicable open source license(s), such as the BSD License, Apache License or the GNU Lesser General Public License. Your use of the open source software is subject to the terms of each applicable license. You must agree to the terms of each applicable license, or you cannot use the open source software.
5. INTELLECTUAL PROPERTY RIGHTS. Upon request, you must provide NXP the source code of any derivative of the Licensed Software.
Unless prohibited by law, the following paragraph shall apply. Your modifications to the Licensed Software, and all intellectual property rights associated with, and title thereto, will be the property of NXP. You agree to assign all, and hereby do assign all rights, title, and interest to any such modifications to the Licensed Software to NXP and agree to provide all assistance reasonably requested by NXP to establish, preserve or enforce such right. Further, you agree to waive all moral rights relating to your modifications to the Licensed Software, including, without limitation, all rights of identification of authorship and all rights of approval, restriction, or limitation on use or subsequent modification. Notwithstanding the foregoing, you will have the license rights granted in Section 2 hereto to any such modifications made by you or your licensees.
Otherwise, you agree to grant an irrevocable, worldwide, and perpetual license to NXP to make, have made, use, sell, offer to sell, import, commercialize, sublicense and reproduce your modifications or derivative works to the Licensed Software without any payment to Licensee. You agree to provide all assistance reasonably requested by NXP to establish, preserve or enforce such right.
6. ESSENTIAL PATENTS. NXP has no obligation to identify or obtain any license to any Intellectual Property Right of a third-party that may be necessary for use in connection with technology that is incorporated into the Authorized System (whether or not as part of the Licensed Materials).
7. TERM AND TERMINATION. This Agreement will remain in effect for the Evaluation Period, unless terminated earlier in accordance with this Agreement.
7.1. You may terminate this Agreement immediately upon written notice to NXP at the address provided below.
7.2. NXP may terminate this Agreement immediately upon written notice to you.
7.3. Upon termination of this Agreement, all licenses granted under Section 2 will expire.
7.4. After termination of this Agreement by either party, (a) you will promptly return to NXP or, at NXP’s discretion, destroy all of the Licensed Materials and all whole and partial copies of the Licensed Materials within thirty (30) days after the expiration or termination, (b) you will furnish to NXP at the address below a written certification that all of the Licensed Materials including all whole and partial copies, have been (i) destroyed or returned to NXP, and (ii) erased from all of your storage elements and devices; and (c) you will not keep any archival copies of the Licensed Materials except and only to the extent that applicable law notwithstanding this limitation expressly permits such.
7.5. Notwithstanding the termination of this Agreement for any reason, the terms of Sections 1 and 3 through 24 will survive.
8. SUPPORT. NXP is not obligated to provide any support, upgrades or new releases of the Licensed Materials under this Agreement. If you wish, you may contact NXP and report problems and provide suggestions regarding the Licensed Materials. NXP has no obligation to respond to such a problem report or suggestion. NXP may make changes to the Licensed Materials at any time, without any obligation to notify or provide updated versions of the Licensed Materials to you.
9. NO WARRANTY. To the maximum extent permitted by law, NXP expressly disclaims any warranty for the Licensed Materials. The Licensed Materials are provided “AS IS”, without warranty of any kind, either express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. You assume the entire risk arising out of the use or performance of the Licensed Materials, or any systems you design using the Licensed Materials (if any).
10. INDEMNITY. You agree to fully defend and indemnify NXP from all claims, liabilities, and costs (including reasonable attorney’s fees) related to (1) your use (including your contractors or sublicensee’s use, if permitted) of the Licensed Materials or (2) your violation of the terms and conditions of this Agreement.
11. LIMITATION OF LIABILITY. 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. NXP’S TOTAL LIABILITY FOR ALL COSTS, DAMAGES, CLAIMS, OR LOSSES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR PRODUCT(S) SUPPLIED UNDER THIS AGREEMENT IS LIMITED TO THE AGGREGATE AMOUNT PAID BY YOU TO NXP IN CONNECTION WITH THE LICENSED MATERIALS TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
12. EXPORT COMPLIANCE. Each party will comply with all applicable export and import control laws and regulations including but not limited to the US Export Administration Regulation (including restrictions on certain military end uses and military end users as specified in Section 15 C.F.R. § 744.21 and 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 will survive termination or expiration of this Agreement.
13. GOVERNMENT CONTRACT COMPLIANCE.
13.1. You are not permitted to distribute the Licensed Materials under the terms of this Agreement. Nevertheless, if you sell Authorized Systems containing the Licensed Materials directly to any government or public entity, including U.S., state, local, foreign or international governments or public entities, or indirectly via a prime contractor or subcontractor of such governments or entities, NXP makes no representations, certifications, or warranties whatsoever about compliance with government or public entity acquisition statutes or regulations, including, without limitation, statutes or regulations that may relate to pricing, quality, origin or content.
13.2. The Licensed Materials has been developed at private expense and is a “Commercial Item” as defined in 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software”, and/or “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 (or 48 C.F.R. Section 227.7202, as applicable) and may only be licensed to or shared with U.S. Government end users in object code form as part of, or embedded within, Authorized Systems. Any agreement pursuant to which you share the Licensed Materials will include a provision that reiterates the limitations of this document and requires all sub-agreements to similarly contain such limitations.
14. CRITICAL APPLICATIONS. In some cases, NXP may promote certain software for use in the development of, or for incorporation into, products or services (a) used in applications requiring fail-safe performance or (b) in which failure could lead to death, personal injury, or severe physical or environmental damage (these products and services are referred to as "Critical Applications"). NXP's goal is to educate customers so that they can design their own end-product solutions to meet applicable functional safety standards and requirements. Licensee makes the ultimate design decisions regarding its products and is solely responsible for compliance with all legal, regulatory, safety, and security related requirements concerning its products, regardless of any information or support that may be provided by NXP. As such, Licensee assumes all risk related to use of the Licensed Materials in Critical Applications and NXP WILL NOT BE LIABLE FOR ANY SUCH USE IN CRITICAL APPLICATIONS BY LICENSEE. Accordingly, Licensee will indemnify and hold NXP harmless from any claims, liabilities, damages and associated costs and expenses (including attorneys' fees) that NXP may incur related to Licensee’s incorporation of the Licensed Materials in a Critical Application.
15. CHOICE OF LAW; VENUE. This Agreement will be governed by, construed, and enforced in accordance with the laws of The Netherlands, without regard to conflicts of laws principles, will apply to all matters relating to this Agreement or the Licensed Materials, and you agree that any litigation will be subject to the exclusive jurisdiction of the courts of Amsterdam, The Netherlands. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this document.
16. CONFIDENTIAL INFORMATION. Subject to the license grants and restrictions contained herein, you must treat the Licensed Materials as confidential information and you agree to retain the Licensed Materials in confidence perpetually. You may not disclose any part of the Licensed Materials to anyone other than subcontractors in accordance with Section 2.3, who have a need to know of the Licensed Materials and who have executed written agreements obligating them to protect such Licensed Materials to at least the same degree of confidentiality as in this Agreement. You agree to use the same degree of care, but no less than a reasonable degree of care, with the Licensed Materials as you do with your own confidential information. You may disclose Licensed Materials 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 the minimum of the required information, and that you allow NXP the opportunity to object to such court or other legal body requiring such disclosure.
17. TRADEMARKS. You are not authorized to use any NXP trademarks, brand names, or logos.
18. 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, signed by you and NXP.
19. 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.
20. 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.
21. AUDIT. You will keep full, clear and accurate records with respect to your compliance with the limited license rights granted under this Agreement for three years following expiration or termination of this Agreement. NXP will have the right, either itself or through an independent certified public accountant to examine and audit, at NXP’s expense, not more than once a year, and during normal business hours, all such records that may bear upon your compliance with the limited license rights granted above. You must make prompt adjustment to compensate for any errors and/or omissions disclosed by such examination or audit.
22. NOTICES. All notices and communications under this Agreement will be made in writing, and will be effective when received at the following addresses:
NXP: NXP B.V.
High Tech Campus 60
5656 AG Eindhoven
ATTN: Legal Department
You: The address provided at registration will be used.
23. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. Nothing in this Agreement will be construed to create any partnership, joint venture, or similar relationship. Neither party is authorized to bind the other to any obligations with third parties.
24. SUCCESSION AND ASSIGNMENT. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. You may not assign this Agreement, or any part of this Agreement, without the prior written approval of NXP, which approval will not be unreasonably withheld or delayed. NXP may assign this Agreement, or any part of this Agreement, in its sole discretion.