NOTICE
MIPS Technologies International AG ("MIPS") has developed certain
materials in either source or binary formats which it is willing to
license to semiconductor manufacturers, fabless semiconductor
companies, design houses, software vendors, system OEMs and other
licensees for use in designing, and supporting the development of and
software running on, integrated circuits which have been authorized by
MIPS to incorporate processor cores designed by or under license from
MIPS. In order to create a more open environment for all licensees to
use and modify material provided in source format, MIPS licenses these
materials under its Freedom-To-Use license. In certain instances, use
of these materials may require a license from a third party as set
forth in a separate notice.
MIPS TECHNOLOGIES
FREEDOM-TO-USE LICENSE AGREEMENT
Version 1.0
IMPORTANT - READ CAREFULLY: This Freedom-To-Use License Agreement (the
"Agreement") is a legal agreement between you (either as an individual
or as an authorized representative of an entity, hereafter "Licensee")
and MIPS, pursuant to which MIPS is willing to license you the
materials accompanying this Agreement or made available for download
(the "Licensed Materials" as defined below) on the terms and
conditions set forth herein. By clicking on the "accept" button,
downloading, installing or otherwise using the Licensed Materials, you
agree to be bound by the terms of this Agreement and if doing so on
behalf of an entity, you represent that you are authorized to bind the
entity to the terms and conditions of this Agreement. If you do not
agree to be bound by the terms of this Agreement, do not download,
install or use the Licensed Materials.
1. Definitions. For purposes of this Agreement, the following
definitions shall apply:
1.1 "Licensed Materials" shall include all materials subject to
this Agreement downloaded by or otherwise supplied to Licensee
(including any updates or upgrades thereof made available by
MIPS in its sole discretion).
1.2 "Confidential Information" shall mean and include the Licensed
Materials; any test results, error data, or other reports,
made by Licensee in connection with the license rights granted
under this Agreement; and any notes, extracts, analyses, or
materials prepared by Licensee which are copies of the
Confidential Information or from which the substance of the
Confidential Information can be inferred or otherwise
understood.
1.3 "Licensee Modifications" shall mean all or any modifications
to the Licensed Materials made by or on behalf of Licensee.
For purposes of clarification, however, MIPS acknowledges and
agrees that Licensee is under no obligation to deliver
Licensee Modifications; rather, this definition is intended
solely to provide a freedom to use such modifications when
created independently by MIPS or any sublicensee thereof.
1.4 "Authorized Product" means an integrated circuit that is
authorized by MIPS to incorporate processor cores designed by
or under license from MIPS.
1.5 "MIPS Modifications" shall mean modifications to Licensed
Materials made by MIPS or any third party licensed by MIPS,
wherein such third party grants back to MIPS a license under
such modifications with the unrestricted rights to sublicense
and grant further sublicenses. For purposes of clarification,
however, Licensee acknowledges and agrees that MIPS is under
no obligation to deliver MIPS Modifications; rather, this
definition is intended solely to provide a freedom to use such
modifications when created independently by MIPS or any
sublicensee thereof.
2. License Grants.
2.1 Subject to Licensee's full compliance with the terms and
conditions of this Agreement, and payment of any fees owed to
MIPS (if applicable, which payment shall be non-refundable),
MIPS grants to Licensee a non-exclusive, worldwide,
non-transferable, royalty-free, fully-paid up limited right
and license to:
(i) use, copy, modify, reproduce and have reproduced,
create derivative works of, and sell or otherwise
distribute the "Commercial Documents" (if any)
identified in the Licensed Materials and derivative
works thereof only in conjunction with distribution or
sale of Authorized Products, or software supporting
development of or running on Authorized Products,
provided that all copies and derivative works thereof
contain all copyright and other proprietary notices
contained in the original Commercial Documents and are
complete and accurate;
(ii) use, modify and create derivative works of Licensed
Materials in source format and any MIPS Modifications,
and use Licensed Materials in binary format, solely
for the purpose of incorporating such Licensed
Materials or derivative works thereof in Authorized
Products or developing software supporting development
of or running on Authorized Products; provided that:
(a) Licensee has first obtained a license from any
third party about which MIPS provided Licensee notice
prior to its first use of the Licensed Materials; (b)
any intellectual property rights arising from or
relating to any modification or derivative work of the
Licensed Materials or any MIPS Modifications created
by or for Licensee (i.e., Licensee Modifications)
shall be licensed back to MIPS on a royalty-free
basis, together with the unrestricted right by MIPS to
sublicense such rights and grant further sublicenses,
at its discretion, as set forth in Section 2.3 below;
and (c) all copies and derivative works thereof
contain all copyright and other proprietary notices
contained in the original Licensed Materials and are
complete and accurate;
2.2 The technology you are installing, downloading, or have
acquired with this Agreement, including any updates, upgrades,
modifications, revisions, and documentation, are copyrighted
materials, and may contain trade secrets of MIPS or its
licensors, who maintain exclusive right, title and interest in
and to all Licensed Materials and MIPS Modifications, and
retain all rights not expressly granted by this Agreement. No
title or ownership in any copyright, trademark, trade secret
or other intellectual property right is transferred by MIPS to
Licensee or any other party under this Agreement. Licensee
shall not alter or remove any trademark, copyright or other
proprietary rights notice in the Licensed Materials. Except
as set forth in this Section 2, Licensee shall not use the
Licensed Materials for any other purpose. Licensee may not
modify or reverse engineer any Licensed Materials not
delivered in source format (the "binary materials"), nor may
Licensee decompile, disassemble, or otherwise reduce the
binary materials or any component thereof to human-readable or
non-binary form.
2.3 In partial consideration for the rights and licenses granted
to Licensee under this Section 2, and to enable the "freedom
to use" model of this Agreement, Licensee agrees to grant and
does hereby grant to MIPS (but with no obligation to deliver
as set forth in Section 1.3) a perpetual, irrevocable,
non-exclusive worldwide, royalty-free, fully-paid up right and
license (including the right to sublicense and grant further
sublicensing rights) under Licensee's intellectual property
rights in any Licensee Modifications to the extent that MIPS
may use, modify and create derivative works from such Licensee
Modifications in conjunction with making, using, offering for
sale and selling or otherwise distributing MIPS products
(which may include such Licensee Modifications and derivatives
thereof), and sublicensing the rights granted in this Section
2.3 in order to provide a freedom to use such modifications
when created independently by MIPS or any sublicensee thereof.
2.4 No rights to MIPS trademarks, service marks, logo or trade
name are granted to Licensee pursuant to this Agreement.
3. No Support or Maintenance Obligation. This Agreement does not
entitle Licensee to receive any support, training or maintenance
of any kind from MIPS. Such services, if available, must be
obtained through a separate agreement.
4. Term, Termination and Survival.
4.1 This Agreement is effective upon Licensee's download, access
and/or use of the Licensed Materials, and shall continue for
as long as Licensee is authorized to design, develop or
distribute Authorized Products or software supporting
development of or running on Authorized Products, unless
earlier terminated as provided herein. Licensee may terminate
this Agreement at any time. Either party may terminate this
Agreement immediately should the Licensed Materials become, or
in either party's opinion be likely to become, the subject of
a claim of infringement of any intellectual property right.
This Agreement will terminate automatically without notice
from MIPS if Licensee fails to comply with any provision of
this Agreement. Upon termination, Licensee shall destroy all
copies of Licensed Materials and all non-surviving rights
granted hereunder shall cease.
4.2 The rights and obligations under this Agreement which by their
nature should survive termination, including but not limited
to the license rights granted to MIPS by Licensee pursuant to
Section 2.3 above, and the terms and conditions of Sections 4
- 11, will remain in effect after expiration or termination of
this Agreement. Except as otherwise set forth herein and
provided no claim or action has been brought against MIPS
and/or Licensee for infringement of third party rights, any
Authorized Products incorporating Licensed Materials or any
derivative thereof or any software supporting development of
or running on Authorized Products may continue to be made,
sold and distributed in accordance with Licensee's rights
under its agreements with respect to the Authorized Products.
5. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE LICENSED MATERIALS AND THE MIPS MODIFICATIONS
ARE PROVIDED TO LICENSEE "AS IS." MIPS MAKES NO WARRANTIES AND,
TO THE FULL EXTENT ALLOWED BY LAW, EXPRESSLY DISCLAIMS ALL
WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY, ACCURACY, AND NON-INFRINGEMENT OF THIRD
PARTY RIGHTS REGARDING THE LICENSED MATERIALS AND MIPS
MODIFICATIONS. MIPS DOES NOT WARRANT THAT OPERATION OF THE
LICENSED MATERIALS WILL BE ERROR-FREE, AND THAT USE THEREOF WILL
BE UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED.
6. Limitation of Liability and Remedies. Licensee acknowledges the
Licensed Materials and any MIPS Modifications are provided to
Licensee only for the purpose set forth in Section 2 herein. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
MIPS OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR
DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES TO SYSTEMS, DATA OR
SOFTWARE, WHETHER SUCH DAMAGES ARISE UNDER A TORT (INCLUDING
NEGLIGENCE OR OTHERWISE), CONTRACT OR OTHER CLAIM, EVEN IF MIPS
HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO
EVENT SHALL MIPS BE LIABLE FOR ANY DAMAGES RELATING TO OR
RESULTING FROM THE USE OF LICENSED MATERIALS OR MIPS MODIFICATIONS
IN PRODUCTS USED FOR AVIATION, MEDICAL, NUCLEAR OR ULTRA HAZARDOUS
PURPOSES OR FOR ANY DAMAGES OWED TO THIRD PARTIES RELATING TO
TECHNOLOGY NOT PROVIDED BY MIPS. IN NO EVENT WILL MIPS' LIABILITY
TO LICENSEE UNDER THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNT
PAID BY LICENSEE FOR THE LICENSED MATERIALS OR US $100. THIS
LIMITATION ON LIABILITY SHALL SURVIVE EVEN IF THE LIMITED REMEDY
PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. Licensee
acknowledges that, in providing Licensee with the Licensed
Materials, MIPS has relied upon Licensee's agreement to be bound
by the terms of this Agreement, including the obligation to obtain
any necessary licenses from third parties. Further, Licensee
agrees to indemnify and hold MIPS harmless from any and all actual
or threatened liabilities, claims or expenses caused by Licensee's
use of any Licensed Materials or MIPS Modifications and any
Licensee Modifications made by or for Licensee.
7. Confidentiality. Licensee agrees (i) to use the Confidential
Information only as necessary to exercise its rights or fulfill
its obligations under this Agreement; (ii) to implement reasonable
procedures to prohibit the disclosure, unauthorized duplication,
misuse or removal of Confidential Information; and (iii) not to
disclose Confidential Information to employees not having a need
to know or to any third party (except that Licensee may, in
appropriate circumstances and subject to a nondisclosure agreement
with terms and conditions at least as protective as the terms of
this Section 7, disclose Confidential Information to Licensee's
contractors, solely as permitted under Section 2 of this
Agreement). Without limiting the foregoing, Licensee shall at all
times protect the Confidential Information with at least the same
standard of care as it exercises to protect its own confidential
information of like importance, but in no event less than
reasonable care.
8. General Terms and Conditions.
8.1 Export. Licensee agrees that it will comply with all
applicable US and international laws relating to export, or
transfer for the purpose of reexport, as well as end-user, end
end-use and destination restrictions imposed by the US or any
other governments.
8.2 Governing Law and Forum Selection. This Agreement shall be
governed by California law excluding its choice of law rules.
With the exception of MIPS' rights to enforce its intellectual
property rights and the confidentiality obligations under this
Agreement, all disputes arising out of this Agreement shall be
subject to the exclusive jurisdiction and venue of the state
and federal courts located in Santa Clara County, California,
and the parties consent to the personal and exclusive
jurisdiction and venue of these courts. Licensee waives all
defenses of lack of personal jurisdiction and forum
non-conveniens. If either party employs attorneys to enforce
any rights arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable
attorneys' fees. The parties expressly disclaim the
application of the United Nations Convention on the
International Sale of Goods to this Agreement.
8.3 U.S. Government End Users. Licensee acknowledges that all
software and software related items licensed by MIPS to
Licensee pursuant to this Agreement are "Commercial Computer
Software" or "Commercial Computer Software Documentation" as
defined in FAR 12.212 for civilian agencies and DFARS 227.7202
for military agencies, and that in the event that Licensee is
permitted under this Agreement to provide such items to the
U.S. government, such item shall be provided under terms at
least as restrictive as the terms of this Agreement.
8.4 Waiver or Delay. Any express waiver or the failure to
exercise promptly any right under this Agreement will not
create a continuing waiver or any expectation of
non-enforcement.
8.5 Severability. Should any term of this Agreement be declared
void or unenforceable by any court of competent jurisdiction,
such declaration shall have no effect on the remaining terms
hereof.
8.6 No Assignment. Licensee may not assign or otherwise transfer
any of its rights or obligations under this Agreement to any
third party without MIPS' prior written consent, and any
attempt to do so will be null and void.
8.7 Entire Agreement. This Agreement constitutes the entire
agreement of the parties concerning its subject matter, and
may not be modified except by a writing duly executed by both
parties.
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