PLEASE CAREFULLY READ THIS MICRON TECHNOLOGY, INC., AUTOMATA PROCESSOR SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT (THE "AGREEMENT") BEFORE DOWNLOADING, INSTALLING, COPYING, ACCESSING OR OTHERWISE USING THE AUTOMATA PROCESSOR SOFTWARE DEVELOPMENT KIT OF MICRON TECHNOLOGY, INC., HAVING A PLACE OF BUSINESS AT 8000 S. FEDERAL WAY, BOISE, IDAHO 83716, USA ("MICRON"). THE AUTOMATA PROCESSOR SOFTWARE DEVELOPMENT KIT INCLUDES THE SOFTWARE PACKAGE AND COMPONENTS AVAILABLE FROM MICRON RELATED TO MICRON’S AUTOMATA PROCESSOR TECHNOLOGY, SPECIFICALLY INCLUDING COMPILERS, DEBUGGERS, SIMULATORS, APPLICATION PROGRAMMING INTERFACES, LIBRARIES AND PROGRAMMING LANGUAGE BINDINGS, OBJECT CODE, EXECUTABLE APPLICATIONS, SCRIPTS, XML SCHEMAS, MACROS AND MACRO LIBRARIES, HEADER FILES, DOCUMENTATION, AND DRIVERS, REGARDLESS OF ASSOCIATED OPERATING SYSTEM, ALL OF WHICH IS REFERRED TO COLLECTIVELY HEREIN AS THE "SDK", BUT WHICH EXPRESSLY EXCLUDES API HEADER REFERENCES AND SAMPLE CODE (AS DEFINED BELOW). IN ORDER TO ACCESS AND/OR USE THE SDK, IN WHOLE OR IN PART, YOU MUST FIRST AGREE TO THIS AGREEMENT. IF YOU DO NOT OR CANNOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED TO DOWNLOAD, INSTALL, COPY, ACCESS OR OTHERWISE USE THE SDK. AS A CONDITION OF ACCESSING OR USING THE SDK, YOU ACKNOWLEDGE AND AGREE ON BEHALF OF YOURSELF AND YOUR EMPLOYER (COLLECTIVELY "LICENSEE") TO THE TERMS AND CONDITIONS SET FORTH HEREIN. AS A FURTHER CONDITION OF ACCESSING OR USING THE SDK, LICENSEE REPRESENTS AND WARRANTS THAT ANY AND ALL INFORMATION PROVIDED TO MICRON IN CONNECTION WITH THE SDK AND/OR THIS AGREEMENT IS AND WILL BE CURRENT, TRUE, ACCURATE, SUPPORTABLE AND COMPLETE, THAT LICENSEE WILL PROMPTLY NOTIFY MICRON OF ANY CHANGES TO SUCH INFORMATION, AND THAT LICENSEE IS NOT A DIRECT COMPETITOR OF MICRON. LICENSEE ACKNOWLEDGES AND EXPRESSLY CONSENTS THAT MICRON AND ITS SERVICE PROVIDERS MAY COLLECT INFORMATION FROM AND ABOUT LICENSEE, INCLUDING FOR EXAMPLE WITH RESPECT TO NAMES, EMAIL ADDRESSES, AND ANY INTERNET PROTOCOL ADDRESS(ES) THROUGH WHICH MICRON IS CONTACTED. BY CLICKING AN "ACCEPT", "AGREE" OR A SIMILAR BUTTON OR BY CHECKING A RELATED BOX ON A WEBPAGE, AND/OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE ACCESSING OR USING THE SDK, YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BETWEEN LICENSEE AND MICRON, EFFECTIVE AS OF THE DATE OF THE FOREGOING ACTION. IF YOU DOWNLOAD, INSTALL, COPY, ACCESS OR OTHERWISE USE THE SDK, LICENSEE WILL BE ACQUIRING A LICENSE TO USE THE SOFTWARE, IN OBJECT CODE FORM ONLY, IN ACCORDANCE WITH AND CONDITIONED UPON THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND LICENSEE WILL BE CONSIDERED TO HAVE ACCEPTED AND AGREED TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.1 "Agreement" is defined in the first paragraph above.
1.2 "API Header Reference(s)" shall mean software programming references written in the human-readable source code of an Independent Application where such references identify components of the SDK in order to allow the compiled version of such Independent Application to communicate with remote SDK components to perform a function.
1.3 "Automata Processor" shall mean Micron’s semiconductor device or family of devices that accepts the output of the compiler included in the SDK.
1.4 "Confidential Information" shall mean and include the SDK and all portions thereof (whether or not modified), without any requirement of identification or labeling with respect to any of the foregoing, but shall not include API Header References or Sample Code.
1.5 "Feedback" is defined in Section 5 of this Agreement.
1.6 "Independent Application(s)" means applications, code and ANML files that are capable of running in connection with the Automata Processor, including without limitation any of the foregoing that is generated using the SDK (e.g., application source code that includes API Header References, or finite state machines generated by the Micron compiler application).
1.7 "Licensee" is defined in the first paragraph of this Agreement, above.
1.8 "Micron" is defined in the first paragraph of this Agreement, above.
1.9 "Modification(s)" is defined in Section 2.1(a) of this Agreement.
1.10 "Object Code" means the output, substantially or entirely in binary form, of a compilation of Source Code.
1.11 "Purpose" is defined in Section 4.1 of this Agreement.
1.12 "Sample Code" means certain examples of how to use the SDK programming interfaces that may be provided by Micron to Licensee in Source Code format, in connection with the SDK distribution, and that are identified in a filename or otherwise by the term "sample code" or a similar identifier.
1.13 "SDK" is defined in the first paragraph of this Agreement, above.
1.14 "Source Code" means computer programming source code (and related source code level system documentation, comments, and procedural code) that may be printed out or displayed in a form readable and understandable by a person having ordinary skill in the relevant programming language(s).
1.15 "Subsidiary" means any legal entity, whether such entity now exists or is hereafter created or acquired, that is directly or indirectly more than fifty percent (50%) owned by the applicable party hereto.
2. License and Ownership.
2.1 License Grant.
b) Notwithstanding anything to the contrary in the foregoing Section 2.1(a), no license or right of any kind is granted herein by Micron (or its licensors/suppliers) to Licensee with respect to any SDK code or component, in whole or in part, to (i) disclose, distribute or otherwise provide the foregoing to any third party, (ii) make any modification or derivative work with respect to the foregoing, or (iii) sublicense any of the foregoing in any format to any third party(ies) for any purpose; and Licensee further agrees that it shall not engage in any of the foregoing activities.
2.2 Ownership; No Implied Licenses . Except as expressly provided set forth herein, Micron (and/or its licensors/suppliers) retains all rights, title and interest in and to the SDK and all patents, copyrights, trademarks, trade secrets, and all other proprietary or intellectual rights therein. Licensee acknowledges and agrees that the SDK is proprietary property of Micron and is protected by United States copyright law and international treaty provisions, that no ownership interest in or to the SDK is transferred to Licensee hereunder, including with respect to API Header References that may be incorporated in Independent Applications. Licensee acknowledges and agrees that the SDK is provided to Licensee during the term of this Agreement solely and strictly on a license basis, as provided for within this Agreement. Micron (and/or its licensors/suppliers) reserves all rights not expressly granted hereunder, and there shall be no implied licenses granted by Micron (and/or its licensors/suppliers) to Licensee hereunder (including by estoppel, operation of law or otherwise). Licensee shall retain all copyright, trademark, and any other notices and disclaimers of Micron within the SDK. Certain elements of the SDK may be provided in files/data formatted for use with or by certain third party software/tools/products. No licenses or rights to any such third party software/tools/products are granted to Licensee by Micron. Licensee shall ensure that it has obtained all necessary licenses and rights to use any third party software/tools/products necessary to utilize the SDK.
2.3 Restrictions . Except as expressly permitted by this Agreement, Licensee shall not incorporate, copy, distribute, provide, disclose or otherwise use the SDK. Notwithstanding anything to the contrary in this Agreement, Licensee shall not copy, incorporate or otherwise include any code or component of the SDK, in whole or in part, in any Independent Application.
Except to the extent the following restriction may be expressly prohibited by applicable law, and except with respect to Sample Code, Licensee shall not modify, alter, adapt, translate, decompile, disassemble, reverse-engineer, or otherwise attempt to discover or discern the Source Code for (including without limitation any data content layout in or associated with) the SDK. For the avoidance of doubt, Licensee shall not disclose the software design, data structure, or architecture information of the SDK to any third party(ies).
3. No Support Obligation. Micron has no and shall have no obligation or responsibility whatsoever under this Agreement to provide to Licensee or any third party, any maintenance, support, integration or assistance, including without limitation with respect to any changes, updates or new versions related to the SDK ("Support"). During the term of this Agreement, however, Micron may from time-to-time in its sole discretion provide Support to Licensee, and provision of same shall not create nor impose any future obligation on Micron to provide any such Support. Such Support may include provision by Micron to Licensee of updates and/or upgrades to the SDK, which may include bug fixes and/or error corrections, and any such updates and/or upgrades to the SDK provided by Micron to Licensee shall be deemed and considered to be the SDK hereunder and shall be governed by the terms and conditions of this Agreement. In addition, Micron may provide new versions of the SDK to Licensee under this Agreement and any and all such versions provided by Micron to Licensee shall be deemed and considered to be the SDK hereunder and shall be governed by the terms and conditions of this Agreement. Micron may make changes to the SDK at any time and for any reason without notice to Licensee, including by deleting or disabling the SDK, in whole or in part, including with respect to copies of the SDK previously received by Licensee. Micron cannot and shall not be held liable or responsible to Licensee or any third party in connection with either a lack of any Support, or any Support that may be provided. Licensee expressly releases Micron from, and hereby waives, any claims, whether known or unknown, related to any Support that is or is not provided by Micron. Licensee acknowledges and agrees that it is solely responsible for the provision, maintenance and operation of all software (including without limitation all operating systems), hardware, firmware, computer and telecommunications equipment and services, and all other third party products, materials and services necessary or useful for the proper download, installation, access and/or use of the SDK, and for paying any and all fees, costs and expenses associated with any and all of the foregoing.
4.1 Confidential Information is disclosed to Licensee strictly for the purpose of Licensee exercising its limited license rights within the scope of license set forth above in Section 2 (the "Purpose"). Licensee shall not, and shall cause its Representatives (as defined below) to not, use the Confidential Information except to the extent necessary for the Purpose and in accordance with the terms of this Agreement.
4.2 Recipient shall, and shall cause its Representatives (as defined below) to, maintain the confidentiality of the Confidential Information with at least the same degree of care it uses to protect its own confidential information, but in no case with less than reasonable care. Recipient shall not, and shall cause its Representatives to not, disclose the Confidential Information to any third party, except as specifically permitted herein.
4.3 Recipient may disclose the Confidential Information to its employees, directors, officers, contractors, agents, legal counsel and accountants (collectively, "Representatives") and Representatives of its Subsidiaries who have a need to know the information in connection with the Purpose and who are subject to a written agreement or professional obligation that prohibits unauthorized use and disclosure of the Confidential Information. Participant shall be liable for any unauthorized use or disclosure of the Confidential Information by its Representatives or Representatives of its Subsidiaries.
4.4 Recipient may disclose the Confidential Information pursuant to a valid judicial or governmental order or as required by applicable law or stock exchange rule, provided that, prior to such disclosure, Recipient notifies Micron of such requirement to disclose (except to the extent Recipient’s compliance with the foregoing would cause it to violate a court order or other legal requirement) and reasonably cooperates with Micron’s efforts to seek a protective order or otherwise avoid or minimize the disclosure.
4.5 Recipient shall notify Micron promptly in the event of any disclosure of Confidential Information by it or its Subsidiaries or any of their respective Representatives not authorized under this Agreement.
5. Feedback. In the event Licensee and Micron enter into one or more separate, subsequent agreements signed by the authorized representatives of each party hereto, the terms of which directly conflict with or are otherwise inconsistent with this Section 5, then such subsequent agreement(s) shall control and supersede this Section 5 to the extent of such conflict or inconsistency. Licensee is not obligated to provide Micron with any feedback, comments, suggestions, or other information regarding the SDK or the Automata Processor, including any suggestions regarding any modification, correction, improvement, or enhancement of the SDK or the Automata Processor (collectively "Feedback"). The parties acknowledge and agree that any Feedback provided by Licensee and/or its Subsidiaries to Micron shall be considered "as-is", without any implied representation or warranty in connection with such Feedback. In the event that Licensee and/or any of its Subsidiaries provides any such Feedback to Micron then Licensee, on behalf of itself and its Subsidiaries, hereby grants and agrees to grant to Micron a non-exclusive, transferable, sublicensable, irrevocable, perpetual, worldwide, royalty-free, fully paid-up license and right, under all intellectual property rights of Licensee and its Subsidiaries at any time in or to the Feedback, for any and all purposes and applications and to practice any and all methods and processes.
6. DISCLAIMER OF WARRANTY. THE SDK IS PROVIDED BY MICRON TO LICENSEE HEREUNDER "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE FOREGOING, MICRON DOES NOT WARRANT THAT THE SDK WILL MEET LICENSEE’S REQUIREMENTS OR THAT IT WILL BE ERROR-FREE, BUG-FREE, UNINTERRUPTED, TIMELY, COMPLETE, ACCURATE OR SECURE, AND MICRON DOES NOT WARRANT THE RESULTS OF THE USE OF THE SDK IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. MICRON (AND ITS LICENSORS/SUPPLIERS) HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THE SDK AND/OR THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING, TRADE USAGE, TRADE CUSTOM OR TRADE PRACTICE. THE PRESENT SECTION AND THE DISCLAIMERS HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMISSABLE UNDER APPLICABLE LAW.
7. LIMITATION OF LIABILITY. THE ENTIRE RISK ARISING OUT OF OR RELATED TO THE DOWNLOAD, INSTALLATION, ACCESS, USE, RESULTS AND PERFORMANCE OF THE SDK IS ASSUMED BY AND REMAINS WITH LICENSEE. MICRON (AND ITS LICENSORS/SUPPLIERS) SHALL NOT BE RESPONSIBLE OR LIABLE UNDER ANY CIRCUMSTANCES (OR ANY LEGAL OR EQUITABLE THEORY) WHATSOEVER ARISING OUT OF OR RELATING TO THE SDK, THE INDEPENDENT APPLICATIONS OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY LOST REVENUE OR PROFITS, LOST OR DAMAGED DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS WHATSOEVER, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS LIMITING MICRON’S (OR ITS LICENSORS’/SUPPLIERS’) LIABILITY IN A MANNER WHICH IS EXPRESSLY PROHIBITED BY APPLICABLE LAW IN A PARTICULAR JURISDICTION, AND IN ANY SUCH JURISDICTION MICRON’S (AND ITS LICENSORS’/SUPPLIERS’) LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
8. Term and Termination. This Agreement is effective until terminated. Micron may terminate this Agreement at any time, effective immediately, for any reason or no reason. This Agreement shall terminate automatically and immediately, without requiring notice from Micron, if Licensee fails to comply with any term or condition of this Agreement. Licensee may terminate this Agreement for its convenience, effective upon forty-five days’ written notice to Micron. Immediately upon termination of this Agreement, all licenses and rights granted to Licensee under this Agreement shall terminate, and Licensee shall cease any and all uses with respect to the SDK. Immediately upon termination, Licensee shall delete or otherwise destroy all copies received or made by Licensee of the SDK and its components. The following Sections of this Agreement shall survive the termination or expiration of this Agreement for any reason: 1, 2.1(b), 2.2, 2.3, 3-8, and 10-13.
9. U.S. Government Licensees. Any download, installation, access or use of the SDK for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The SDK shall be deemed a COMMERCIAL ITEM AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. Use by the U.S. Government is further restricted according to the terms of this Agreement and any amendment hereto.
10. Export. Licensee agrees that it shall comply fully with all relevant and applicable export controls and sanctions laws and regulations of the United States, including but not limited to the Export Administration Regulations (15 C.F.R. parts 700-774) and the Foreign Assets Control Regulations (31 CFR parts 500-598) ("Export Laws") to ensure that the SDK is not: (i) exported, reexported, or otherwise released directly or indirectly, in violation of Export Laws; (ii) released to persons listed on any of the restricted parties lists administered by the U.S. Departments of Commerce, State, or Treasury; or (iii) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical or biological weapons proliferation.
11. Indemnification. Licensee acknowledges and agrees that the SDK is not designed, developed or licensed for use in connection with: (i) any power generation facility, including, but not limited to, a nuclear powered generation facility; or (ii) flight, navigation or communication of aircraft or ground support equipment; or (iii) military equipment or uses; or (iv) medical equipment or uses, or (v) any inherently dangerous or high risk equipment or uses ((i) through (iv) above individually and collectively referred to herein as a "High Risk Use"), and represents and warrants that Licensee shall not engage in or permit any High Risk Use with respect to the SDK. Licensee agrees that Micron shall not be liable or responsible for any claims, losses, demands, costs, expenses or liabilities of any entity whatsoever arising from or in relation to any such High Risk Use of the SDK, Modifications or Independent Applications, and Licensee also agrees that it shall defend, indemnify and hold harmless Micron, and its licensors, suppliers, subsidiaries, officers, directors and employees, from and against any and all claims and lawsuits related to the foregoing. Licensee further agrees that it shall defend, indemnify and hold harmless Micron, and its licensors, suppliers, subsidiaries, officers, directors and employees, from and against any and all third-party claims or lawsuits that arise out of or are directed to the Modifications and/or Independent Application(s). With respect to any Licensee that is a U.S. public academic institution, the foregoing indemnity provisions in this Section 11 shall only apply to the extent not prohibited by the applicable state statutes that govern Licensee.
12. Publicity and Service Providers. Licensee agrees that it shall not issue any press releases containing, nor advertise, reference, reproduce, use or display, Micron’s name or any Micron trademark without Micron’s express prior written consent in each instance. Micron may employ other companies and individuals to perform functions relating to this Agreement ("service providers"). Examples include digital rights management, delivering packages, sending postal mail and e-mail, analyzing data, providing marketing assistance, providing search results and links (including paid listings and links), processing credit card payments, and providing customer service. Licensee understands, acknowledges and consents that Micron and service providers may collect, use, process, analyze and disclose information about Licensee for a wide variety of uses such as to compile reports, conduct customer research, market product and services to Licensee and others, and other business purposes.
13.1 Governing Law. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without giving effect to such state’s conflict of law or to choice of law principles, and the parties hereto expressly agree to exclude and waive the 1980 United Nations Convention on Contracts for the International Sale of Goods to the extent otherwise applicable. Licensee agrees that the state and federal courts located in Delaware constitute a convenient forum and Licensee hereby consents and submits to the exclusive and personal jurisdiction and venue of such courts for any legal action, suit or proceeding involving this Agreement. Notwithstanding the foregoing, each party shall have the right to apply to or seek redress or relief from any court of competent jurisdiction to enforce or protect its intellectual property rights or Confidential Information. Licensee acknowledges and agrees that due to the unique nature of the SDK, there may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may result in irreparable harm to Micron. Therefore, upon any such breach or threatened breach, Micron may seek appropriate equitable relief (including without limitation injunctive relief) in addition to whatever rights or remedies Micron may have available hereunder or at law.
13.2 Assignment. Neither this Agreement nor any of the rights or obligations herein may be assigned or transferred in any manner by Licensee, in whole or in part, without the express prior written consent of Micron, and any attempt to do so shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties as well as any permitted successors and assigns.
13.3 Severability and Waiver. Any provision of this Agreement which is held to be invalid or unenforceable by a court in any jurisdiction shall, as to such jurisdiction, be severed from this Agreement and ineffective to the extent of such invalidity or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Failure by either party hereto to enforce any term of this Agreement shall not be held a waiver of such term nor prevent enforcement of such term thereafter, unless and to the extent expressly set forth in a writing signed by the party charged with such waiver.
13.4 Remedies Not Exclusive. The remedies herein are not exclusive, but rather are cumulative and in addition to all other remedies available to Micron.
13.5 Interpretation. In this Agreement, words importing a singular number only shall include the plural and vice versa, as the context may indicate, and section numbers and headings are for convenience of reference only and shall not affect the construction or interpretation hereof.
13.6 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties hereto regarding the subject matter hereof and supersedes and merges any and all prior communications, understandings, promises, representations or discussions, written or oral, between the parties regarding the subject matter hereof. Micron may modify this Agreement, from time to time, by making a revised version of this Agreement available on Micron’s website, and any such modification(s) shall take effect and become binding upon Licensee as of the first date of such website availability unless Licensee provides written notice to Micron of termination of this Agreement within fourteen (14) days of such website availability. Except as set forth in the foregoing sentence, no modification of or amendment to this Agreement shall be effective and binding on Micron unless in a writing signed by an authorized representative of Micron.