This Wind River Linux Platform Software License Agreement (the “Agreement”), is made between Wind River Systems, Inc. (“Wind River”), on the one hand, and the individual accessing or using the Software or any single legal entity on behalf of which such individual is acting (“Customer”), on the other hand. The effective date of this Agreement is the earlier of the date that you accept this Agreement or the date that Wind River makes the Products available to you (“Effective Date”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, ACCESSING, INSTALLING OR USING THE PRODUCTS. BY CLICKING ON THE "I ACCEPT" BUTTON YOU: ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND WARRANT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE THE PRODUCTS AND SERVICES AND YOU MUST UNINSTALL AND RETURN THE PRODUCT TO WIND RIVER WITHIN TEN (10) DAYS.
IF YOU ARE EVALUATING THE PRODUCT, THE TERMS SPECIFIED IN APPENDIX B SHALL APPLY IN ADDITION OF THE TERMS OF THE AGREEMENT AND APPENDIX A.
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The parties agree as follows:
1. SCOPE. This framework Agreement governs Wind River’s provision to Customer of the Products and Services as detailed in the Quote or Exhibit. Terms in initial capitalized letters, not defined elsewhere in this Agreement, have the meanings set forth in Section 12 (Definitions).
2. LICENSE. Each program, component or application included in the Software may be governed by one or more Open Source License(s), as specified or referenced in the respective Source Code files. Without limiting the foregoing, for the convenience of Customer, Wind River will make available, upon request, applicable licensing information in the Linux Foundation’s SPDX® format. Tools provided to Customer shall be licensed under the terms of the attached Appendix A, which is hereby incorporated by reference into this Agreement.
3. SERVICES.
3.1. Support. Customer’s payment of the applicable fees entitles Customer to Support during the License Term. Support is provided in accordance with the terms of Wind River’s then current Software Support and Maintenance Agreement, which terms are hereby incorporated by reference into this Agreement. A copy of the current Software Support and Maintenance Agreement can be accessed through Wind River’s website: http://www.windriver.com/support/SupportTerms.pdf
3.2. Professional Services. Professional services, if included in a signed statement of work, will be provided at additional cost and subject to Wind River’s then current Professional Services Terms and Conditions, which terms are hereby incorporated by reference into this Agreement. A copy of the current Professional Services Terms and Conditions can be accessed through Wind River’s website:
http://windriver.com/services/ProductAgreementServicesAttachment.pdf
3.3. Education and Training. Education and training services (e.g., mentoring, live or remote classes, etc.), if included in the Quote or Exhibit will be provided pursuant to Wind River’s then current Education Services terms and conditions, which terms are hereby incorporated by reference into this Agreement. A copy of the current Education Services terms and conditions can be accessed through Wind River’s website: http://education.windriver.com/content/public/resources/Supplemental_Education_Services_Terms_and_Conditions.pdf
4. CONFIDENTIAL INFORMATION. Customer will not use or disclose any Confidential Information, except as expressly authorized by this Agreement, and will protect all such Confidential Information using the same degree of care that Customer uses with respect to its own proprietary information, but in no event less than reasonable care. If Confidential Information must be disclosed to a third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of Customer, Customer will: (i) assert the confidential nature of the information in the action or proceeding; (ii) promptly notify Wind River of the order or request; and (iii) permit Wind River (at its own expense) to seek an appropriate protective order.
5. TERM AND TERMINATION.
5.1. Term. The term of this Agreement will commence upon the Effective Date and continue until expiration of the License Term unless earlier terminated as set forth herein. The renewal date for all Products and Services hereunder will be the last day of the applicable License Term, regardless of whether Customer chooses to license additional Products during such License Term. Customer must notify Wind River at least thirty (30) days prior to the end of the License Term of its request to renew its subscription. Unless the parties mutually agree to renew the subscription, and Customer pays the then-applicable fees, Customer’s license to the Tools and entitlement to Support will terminate on the last day of the then-current License Term.
5.2. Termination. Either party may terminate this Agreement immediately upon notice for the material breach of the other party, which breach is curable and has remained uncured for a period of thirty (30) days from the date of notice. In addition, Wind River may immediately terminate this Agreement if Customer is delinquent on its payment obligations for thirty (30) days or more.
5.3. Consequences of Expiration or Termination. Upon expiration of the License Term or termination of this Agreement, Customer will: (a) not use the Tools for any purpose whatsoever; (b) no longer be entitled to receive or have access to Support or other Services; (c) immediately destroy or return to Wind River all material belonging to Wind River or its licensors, including, without limitation, all Confidential Information of Wind River then in Customer’s possession; and (d) promptly certify to Wind River in writing that Customer has completed the actions described in the foregoing subsections. These remedies will be cumulative and in addition to any other remedies available to Wind River. Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 will survive expiration or termination of this Agreement.
6. DELIVERY, PAYMENT AND TAXES.
6.1. Delivery and Payment Terms.
6.1.1. The Product will be deemed irrevocably accepted upon shipment. When Product is made available to Customer for electronic download through access to a website and/or server, shipment will be deemed to have occurred at the time of such availability.
6.1.2. Customer will pay Wind River the fees set forth in the applicable Exhibit or Quote. Wind River will invoice Customer the applicable fees upon receipt of a correctly issued purchase order from Customer, which may coincide with shipment of the Software or Tools. Payment terms herein are subject to prior credit approval by Wind River. Customer will pay all invoices within thirty (30) days of the date of such invoice in U.S. dollars unless otherwise set forth in the applicable Exhibit or Quote. Interest on late payments will accrue at the rate of one and one-half percent (1.5%) per month or partial month, or, if lower, the highest rate permitted by law. Customer is responsible for reasonable costs associated with collection of overdue amounts, including without limitation, reasonable attorneys’ fees and court costs. Failure to pay any invoice in the manner described in this Section 6 may, at Wind River’s discretion, be deemed a material breach of this Agreement.
6.1.3. If Products or Services are purchased through an authorized Wind River distributor, Customer will be invoiced directly by such distributor (and not Wind River), and Customer will pay the distributor the applicable fees in accordance with the payment terms agreed to between Customer and the distributor.
6.2. Purchase Orders. Unless Products or Services are purchased through an authorized Wind River distributor, Customer will submit to Wind River a purchase order in the amount specified in the corresponding Exhibit or Quote. Any additional or different terms and conditions on the purchase order will be of no force or effect. Wind River may reject any purchase order that Wind River determines to be outside the scope of this Agreement.
6.3. Taxes. All amounts due hereunder will be paid without deduction, set-off or counter claim, free and clear of any restrictions or conditions, and without deduction for any taxes, levies, imposts, duties, fees, deductions, withholdings or other governmental charges. If any deduction is required to be made by law, Customer will pay the full amount owed to Wind River plus the amount to be deducted, so that Wind River will receive the same amount as it would have received had the deduction not been required. If Customer is claiming sales or use tax exemption, a valid and fully executed Tax Exempt Certificate must be attached to this Agreement or the applicable Quote or Exhibit, or the applicable purchase order. Customer will promptly pay or reimburse all taxes (exclusive of taxes on Wind River’s net income), duties and assessments arising from amounts payable to Wind River under this Agreement, or furnish Wind River with evidence acceptable to the taxing authority to sustain exemption therefrom.
7. CUSTOMER COMPLIANCE. Wind River or its designated representative will have the right to: (a) require that Customer send a written certification of compliance with the terms of this Agreement within fifteen (15) days of Wind River’s request; and (b) conduct an inspection and audit (“Audit”) upon reasonable notice of the relevant operational, accounting and sales books and records of Customer and any other information within Customer’s possession or control that is reasonably necessary to determine whether Customer has complied with this Agreement, and obtain true and correct photocopies of the foregoing materials. Such Audit will be conducted during regular business hours at Customer’s offices and so as not to interfere unreasonably with Customer’s normal business activities. Customer will permit or provide for completion of any Audit within forty-five (45) days of notice. If an Audit discloses any underpayment of fees, then Wind River will invoice Customer for, and Customer will promptly pay Wind River, the underpaid fee amount based on the higher of the price specified in this Agreement or Wind River’s price list in effect at the time the audit is completed, together with late payment interest in accordance with Section 6.1 (Delivery and Payment Terms). If an Audit discloses underpayment of five percent (5%) or more, then Wind River will also invoice Customer for, and Customer will promptly pay, Wind River’s reasonable costs of conducting the Audit.
8. LIMITED WARRANTY.
8.1. Limited Warranty. The Software is provided “AS IS”. In no event does Wind River warrant that the Software is error free or that the Software will satisfy Customer's own specific requirements. Customer assumes full responsibility for: (a) the selection of the Product; (b) the proper installation and use of the Products; (c) verifying the results obtained from the use of the Products; and (d) taking appropriate measures to prevent loss of data.
8.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 ABOVE, WIND RIVER AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WIND RIVER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES WILL IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES PROVIDED BY WIND RIVER IN THIS AGREEMENT OR THE APPLICABLE OPEN SOURCE LICENSES. WIND RIVER DOES NOT WARRANT THAT THE QUALITY OR PERFORMANCE OF ANY PRODUCT AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT CUSTOMER WILL BE ABLE TO ACHIEVE ANY PARTICULAR RESULTS FROM USE OR MODIFICATION OF THE PRODUCT, OR THAT THE PRODUCT WILL OPERATE FREE FROM ERROR. WIND RIVER MAKES NO WARRANTY WITH RESPECT TO ANY MALFUNCTIONS OR OTHER ERRORS IN ITS PRODUCTS CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR MALICIOUS CODE NOT DEVELOPED BY WIND RIVER. WIND RIVER MAKES NO WARRANTY THAT ANY PRODUCTS OF WIND RIVER WILL PROTECT AGAINST ALL POSSIBLE SECURITY THREATS, INCLUDING INTENTIONAL MISCONDUCT BY THIRD PARTIES. WIND RIVER IS NOT LIABLE FOR ANY DOWNTIME OR SERVICE INTERRUPTION, FOR ANY LOST OR STOLEN DATA OR SYSTEMS, OR FOR ANY OTHER DAMAGES ARISING OUT OF OR RELATING TO ANY SUCH ACTIONS OR INTRUSIONS. Some jurisdictions do not allow the limitation or exclusion of implied warranties or how long an implied warranty may last, so the above limitations may not apply to Customer. This warranty gives Customer specific legal rights and Customer may have other rights that vary from jurisdiction to jurisdiction.
9. CUSTOMER INDEMNITY. Customer will defend at its expense Wind River against any claims, suits, or proceedings brought against Wind River by third parties resulting from, in connection with, attributable to any Customer product or service incorporating or using the Software, or by Customer’s direct or indirect end users, and will indemnify Wind River for any costs, losses, damages, and expenses (including reasonable legal fees) resulting from or in connection with such claim, suit, or proceeding. Customer's obligations under this Section are conditioned on Wind River: (a) providing Customer prompt notice of such claim, suit, or proceeding; (b) tendering to Customer the defense or settlement of any such claim, suit, or proceeding at Customer’s expense; and (c) cooperating with Customer, at Customer’s expense, in defending or settling such claim, suit, or proceeding.
10. LIMITATION OF LIABILITY. WIND RIVER AND ITS LICENSORS WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE OR GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, OR LOSS OF DATA, OR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WIND RIVER HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WIND RIVER’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO WIND RIVER BY CUSTOMER FOR THE AFFECTED PRODUCT OR SERVICES PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so this limitation and exclusion may not apply to Customer.
THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WIND RIVER AND CUSTOMER. WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE PRODUCTS OR SERVICES WITHOUT SUCH LIMITATIONS.
11. GENERAL.
11.1. Governing Law and Venue. This Agreement will be governed in all respects by the laws of the United States of America and the State of Delaware, without reference to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to to this Agreement. All disputes arising under this Agreement will be brought exclusively in the State of Delaware or of the Federal courts sitting therein, provided, however, that the parties will be entitled to seek injunctive relief in the appropriate forum. Customer consents to the personal jurisdiction of the above courts.
11.2. Export Control. All software and technical information delivered under this Agreement are subject to U.S. export controls under the Export Administration Regulations (the “EAR”) or the International Traffic in Arms Regulations (the “ITAR”) and may be subject to export, re-export or import regulations in other countries. Customer agrees to strictly comply with all such laws and regulations. Customer will not export or re-export the software and technical information, directly or indirectly, to: (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria); (b) any end user who Customer knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; or (c) any end user who has been prohibited from participating in US export transactions by any federal agency of the US government. Some of Wind River’s products are classified as “restricted” encryption products under Section 740.17(b)(2) of the EAR and may not be exported or re-exported to government end-users (as defined in Section 772 of the EAR) outside the countries listed in Supplement No. 3 to Part 740 of the EAR without authorization from the U.S. government.
11.3. U.S. Government End-Users. All software and any data relating thereto or derived therefrom are "commercial items" 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. If the end User is a U.S. Government agency, department, or instrumentality, then the use, duplication, reproduction, release, modification, disclosure or transfer of the Software and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Customer will provide the Software to the U.S. Government or to U.S. Government end Users only pursuant to an end user license agreement in accordance with the terms of this Agreement. This U.S. Government end users clause is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other clause or provision that addresses Government rights in computer software or technical data.
11.4. Notices. All notices under this Agreement will be: (a) in writing; (b) delivered by personal delivery or certified or registered mail, return receipt requested, and deemed given upon personal delivery or five (5) days after deposit in the mail. Notices to Wind River will be sent to Wind River Systems, Inc., General Counsel, Legal Affairs, 500 Wind River Way, Alameda, CA 94501, USA (or such other address designated in writing by Wind River), and notices to Customer will be sent to the address identified in Customer’s purchase order.
11.5. Force Majeure. Neither party will be liable for any failure or delay (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, explosions, acts of God, war, governmental action, labor conditions, material shortages or any other cause which is beyond the reasonable control of such party.
11.6. Use of Customer’s Name. Subject to Customer’s approval, Wind River may identify Customer as a customer of Wind River products or services.
11.7. Assignment. Customer will not assign, transfer or delegate any right, license or obligation under this Agreement to a third party, directly or indirectly, including by operation of law or through bankruptcy, merger, acquisition, sale or transfer of all, substantially all or any part of the business or assets of Customer, or undergo a change of Control, without first obtaining Wind River’s prior written consent, which Wind River may withhold in Wind River’s sole discretion. Any purported assignment, transfer, delegation or change of Control in violation of this Section 11.7 (Assignment) is null and void. Wind River may assign, transfer or delegate this Agreement or any right, license or obligation hereunder in its sole discretion.
11.8. Counterparts. In the event this Agreement is executed with signatures, this Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as a signed original of this Agreement.
11.9. Waiver. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
11.10. Miscellaneous. This Agreement will not create any agency, employment relationship, partnership or other form of joint enterprise between the parties. This Agreement and its attachments and exhibits constitute the entire agreement between Customer and Wind River and supersedes all prior oral or written agreements between the parties with respect to the subject matter hereof. The terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement will be of no force or effect. This Agreement may only be amended by a writing signed by the parties that refers explicitly to this Agreement. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the parties.
12. DEFINITIONS. In addition to the terms in initial capitalized letters defined elsewhere in this Agreement, the following terms in initial capitalized letters have the respective meanings set forth below:
12.1. “Confidential Information” means information disclosed by Wind River to Customer, including without limitation, intellectual property, software programs, documentation, pricing, current, future, and proposed products and services, which is (a) in tangible form and bears a “confidential”, “proprietary” or similar legend; and (b) discussions relating to that information whether those discussion occur prior to, concurrent with, or following disclosure of the information. Wind River shall make reasonable efforts to mark its confidential information in tangible form with any of the aforementioned legends prior to disclosure. However, Wind River’s information in tangible form that does not bear any of these legends, and discussions relating to that information, shall nevertheless be protected hereunder as Confidential Information, if Customer knew, or should have reasonably known under the circumstances, that the information was confidential and had been communicated to it in confidence. Confidential Information does not include any information that Customer reasonably demonstrates is: (i) published or otherwise available to the public other than by breach of this Agreement by Customer; (ii) rightfully received by Customer from a third party without confidentiality limitations; (iii) independently developed by Customer as evidenced by appropriate records; (iv) known to Customer prior to its first receipt from Wind River as evidenced by appropriate records; (v) hereinafter disclosed by Wind River to a third party without restriction on disclosure; or (vi) approved for public release by written authorization of Wind River.
12.2. “Control” means: (a) ownership of more than fifty percent (50%) of the outstanding stock or securities entitled to vote for the election of directors or similar managing authority of the subject entity; (b) ownership of more than fifty percent (50%) of the ownership interest that represents the right to make decisions for the subject entity; (c) any other ability to elect more than half of the board of directors or similar managing authority of the subject entity, whether by contract or otherwise; or (d) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the subject entity whether through the ownership of voting securities, through other voting rights, by contract or otherwise.
12.3. “Exhibit” means an attachment to this Agreement that the parties may elect to simultaneously or separately execute from time to time, in addition to the Quote, detailing Products and Services to be provided to Customer, as well as other business restrictions associated with such Products and Services (e.g., Project and Development Locations).
12.4. “License Term” means the term set forth in the Quote or Exhibit or one (1) year commencing on the Effective Date if no term is specified.
12.5. “Object Code” means computer programming code in a form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.
12.6. “Open Source License” means a software license under which the Software Object Code and/or Source Code is made available under terms that allow any licensee to copy, create derivative works and distribute the software without any fee or cost, including but not limited to any open source license listed by the Open Source Initiative (http://www.opensource.org).
12.7. “Product” means Software and Tools.
12.8. “Quote” means the Wind River final sales quote detailing the Products and Services to be provided to Customer, as well as other business restrictions associated with such Products and Services (e.g., Project and Development Locations).
12.9. “Services” means those services provided by Wind River as detailed in the Quote, statement of work or Exhibit, and includes, but is not limited to Support, professional services and education services.
12.10. “Software” means the Linux operating system components (such as the kernel, BSPs and drivers) and any add-on profiles and other related software components, as specified in the Quote or Exhibit and made available by Wind River to Customer in Source Code or Object Code form, including any updates thereto and all accompanying documentation governed by an Open Source License. Software does not include Tools.
12.11. “Source Code” means computer programming code in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation.
12.12. “SPDX” means the Software Package Data Exchange specification for communicating the components, licenses and copyrights associated with a software package, as developed by the Linux Foundation.
12.13. “Support” means the annual support and maintenance services specified in the Quote or Exhibit to be provided by Wind River in accordance with Section 3.1 (Support & Maintenance).
12.14. “Tools” means the proprietary Source Code and Object Code and any accompanying documentation provided by Wind River under this Agreement which is intended for Customer’s internal use in accordance with the terms of the Tools Agreement in Addendum 1 (e.g., Wind River Workbench). Tools shall be deemed “Confidential Information”.
APPENDIX A - WIND RIVER LINUX PLATFORM
TOOLS ADDITIONAL TERMS
1. SCOPE. These terms (“Tools Agreement”) govern Customer’s rights and obligations with respect to the Tools, as specified in the Quote or Exhibit. Terms in initial capitalized letters, not defined in the Agreement or in this Tools Agreement, have the meanings set forth in Section 5 (Definitions). The terms of the Agreement hereby incorporated by reference into this Tools Agreement. The terms of this Tools Agreement shall supersede any conflicting provisions of the Agreement for purposes of such Tools.
2. LICENSE GRANTS. Subject to Customer’s compliance with the terms and conditions of this Tools Agreement and any Quote or Exhibit, and payment of the applicable fees, Wind River grants to Customer, during the License Term, a restricted, personal, non-transferable, non-exclusive, internal-use license:
2.1. for Floating User Development Licenses, to reproduce and use one (1) copy of the Tools per Development License on the Supported Architecture Family, solely for the number of licensed concurrent Floating Users located at each Development Location and specified as licensed for such Tools in such Exhibit or Quote;
OR
2.2. for Named User Development Licenses, to reproduce and use one (1) copy of the Tools per Development License on the Supported Architecture Family, solely for the licensed Named Users located at each Development Location and specified as licensed for such Tools in such Exhibit or Quote. Customer will use license management technology in the Tools to assign each Development License to a Named User and no other User may use the copy of the Tools designated for that Development License without the prior written consent of Wind River; except, however, that Customer may (a) transfer a Named User Development License from one Named User to another individual if the Named User has left Customer’s business, and is replaced by another Named User, or (b) make legal name changes or network UserID changes to the Named User profile information, subject to notification to Wind River submitted to Wind River’s email alias (CustomerReports@windriver.com);
OR
2.3. for Node-Lock User Development Licenses, to reproduce, access and use one (1) copy of the Tools per Development License, solely on the number of “Node-locked hosts” licensed and located at each Development Location and specified as licensed for such Tools in such Exhibit A or Quote. For purposes of this Agreement, the “Node” means the host computer where both the Tools and license management file are physically installed.
3. GENERAL RESTRICTIONS.
3.1. General. Tools are provided to Customer in Object Code and are intended for Customer’s internal use in developing applications in accordance with the Development License and not for distribution. Except as expressly permitted by this Tools Agreement, Customer will not, nor permit any third party to: (a) for Floating User Development Licenses: (i) permit access to or use of the Tools in excess of the quantity of concurrent Floating Users set forth in the applicable Exhibit or Quote; (ii) transfer any Floating User Development License from a Development Location in one country to a Development Location in another country; or (iii) allow one Floating User in one country to access the Tools from a licensed server in another country; (b) for Named User Development License, permit concurrent access to or use of a single copy of the Tools for any Named User Development License, or access or use by anyone other than the Named User assigned to the Development License, as set forth in the applicable Exhibit or Quote; (c) for Node-Lock User Development Licenses, install the Tools on more than the quantity of licensed Nodes set forth in the applicable Exhibit or Quote; (d) translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or attempt to derive the Source Code of any Tools Object Code provided to Customer; (e) reproduce the Tools other than as specified in the applicable license grant set forth in Section 2 (License Grants); (f) sublicense, rent, lease, loan, timeshare, sell, distribute, disclose, publish, assign or transfer any rights, grant a security interest in, transfer possession of the Tools, or electronically transfer the Tools from one computer to another except over Customer’s internal network pursuant to Section 3.2 (Network Access); (g) modify, distribute or otherwise use the Tools in any manner that causes any portion of the Tools that is not already subject to Open Source License to become subject to the terms of any Open Source License; or (h) alter or remove any of Wind River’s or its licensors’ copyright or proprietary rights notices or legends appearing on or in the Tools. Customer will reproduce such notices on any copies of the Tools Customer is permitted to make. Customer will inform all Users of the restrictions set forth in this Tools Agreement with respect to use of the Tools.
3.2. Network Access. Floating and Named Users who have a unique network log-in (e.g., NT or Unix log-in) may access the Tools from a secure network server located at the Development Location over a secure VPN or equivalent secure network. Within thirty (30) days following Wind River’s written request, Customer will disclose to Wind River the Development Location of each network from which Tools will be accessed. Node-Lock Users will not remotely access the licensed node, where “remote access” means any access to the node other than being physically present at the host computer.
3.3. Third Party Software. The Tools licensed under this Tools Agreement may contain or be derived from materials of third party licensors such as materials subject to an Open Source Licenses (“Third Party Software”). Such third party materials may be subject to restrictions in addition to those listed in this Section 3 (General Restrictions), which restrictions, if any, are set forth in the third party notice file that accompanies the Tools. Customer acknowledges and agrees that its use of Third Party Software is subject to its compliance with any such additional terms.
3.4 Copies. Customer may make a reasonable number of copies of the Tools for archival purposes or for use as a back-up. Customer must copy all copyright legends, trademarks, trade names, and other legends on any copies of the Tools.
4. KEYS AND ACCESS. Wind River will provide Customer those keys that are reasonably necessary to permit Customer to gain access to the licensed Tools. Any technology, ideas, know how, documentation, processes, algorithms, and trade secrets disclosed to Customer by Wind River in connection with or as embodied in the Tools and keys shall be considered “Confidential Information” as defined in the Agreement. Customer will disclose such keys solely to authorized Users of the Tools. The Tools also contains license management technology intended to cause the Tools to cease operating upon expiration or termination of the license. Customer will not circumvent the license management technology, or any other security devices, access logs, or other protective measures provided with the Tools or permit or assist any User or any third party to do the same. The license management technology and any other protective measures in the Tools are included solely as a matter of administrative convenience, and Customer has no right or license in or to such protective measures. Customer will be invoiced for any additional Users who access the Tools and will pay any such invoice in accordance with Section 6 (Delivery, Payment and Taxes) of the Agreement. Customer will follow the recommended installation procedures for each Tools product licensed under this Tools Agreement.
5. DEFINITIONS. In addition to the terms in initial capitalized letters defined elsewhere in this Agreement, the following terms in initial capitalized letters have the respective meanings set forth below:
5.1. “Development License” means the right of a User to use certain Tools pursuant to Section 2 (License Grants) of this Tools Agreement. The Development License type and quantity will be specified in an Exhibit or Quote.
5.2. “Development Location” means the geographic address of each Customer site or facility where the Tools are authorized to be installed and used in accordance with the terms of this Agreement. Customer’s Development Location(s) will be specified in an Exhibit A or Quote.
5.3. “Floating User” means any User who may access and use the Tools pursuant to Section 2.1 (Floating User Development License).
5.4. “Named User” means any User who uses the Tools pursuant to Section 2.2 (Named User Development License).
5.5. “Node-Lock User” means any User who uses the Tools pursuant to Section 2.3 (Node-Lock User Development License).
5.6. “Supported Architecture Family” means the target architecture family or families then-supported by Wind River on which Customer may use the Tools pursuant to this Agreement, as specified in an Exhibit or Quote.
5.7. “User” means a Customer employee or independent contractor who (a) is based at a Development Location, (b) will utilize the Tools on behalf of Customer, and (c) has signed a confidentiality agreement with Customer in which such employee or independent contractor agrees to protect third party confidential information with terms no less stringent than those set forth herein. A User may be either: a Floating User, Named User or Node-Lock User, as such terms are further defined in Section 2 (License Grants). For the avoidance of doubt, a User will be deemed to have utilized the Tools if such User has accessed or used any portion of the Tools, including without limitation, to accomplish the goal of, or which results in, any of the following: (a) developing Customer products, including without limitation, software systems, devices, applications or API code, as further specified in Section 2.1(License Grants); (b) using Tools to compile any code; or other similar engineering activity or result.
APPENDIX B - WIND RIVER LINUX PLATFORM
PRODUCT EVALUATION TERMS
1. SCOPE. These terms govern Customer’s rights and obligations with respect to Products which are for Customer’s limited evaluation purposes (“Evaluation Software”). These terms shall supersede any conflicting provisions of the Agreement with respect to the Evaluation Software.
2. LICENSE GRANTS. The following license terms and conditions set forth in this Section 2 (and no other terms) will solely apply to Customer’s use of Evaluation Software:
2.1. Evaluation License. Subject to Customer’s compliance with the terms and conditions of the Agreement, Appendix A and this Appendix B, Wind River hereby grants to Customer a restricted, personal, non-transferable, non-exclusive, internal-use license, for a thirty (30) day period from the Effective Date (“Evaluation Term”) to: (i) use the Tools solely at the Development Location agreed to in writing by the parties and solely for the purpose of internally evaluating the Products and not for any other purpose (including without limitation, commercial or production purposes); and (ii) reproduce the Tools for archive purposes, consistent with Customer’s standard archive procedures.
2.2. Feedback. Customer may disclose any results of any evaluation of the Products including, without limitation, Customer’s opinions, observations, comments, criticisms and suggested improvements, whether in written or oral form (herein, “Feedback”) from its evaluations only to Wind River. Should Customer provide Wind River with Feedback, Wind River will have the right to use such Feedback and related information in any manner it deems appropriate.
2.3. LIMITED OBLIGATIONS. CUSTOMER ACKNOWLEDGES THAT WIND RIVER HAS NO OBLIGATION TO PROVIDE SUPPORT OR MAINTENANCE FOR THE EVALUATION SOFTWARE. IN NO EVENT WILL WIND RIVER’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO EVALUATION OF THE PRODUCTS EXCEED $50.00.
