TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION
- SCOPE AND DEFINITIONS
This End User License Agreement (this “Agreement�) is a legal agreement concerning your use of the Software (defined hereafter) described below. The rights granted to the Software are expressly conditioned upon acceptance of these terms and conditions by the legal entity or person acquiring the license. If you are using the Software as an employee, the company that employs you is the "Licensee" and you are binding the company, and yourself personally, to these terms and conditions by using the Software. References below to "you" or "your" refer to the licensee of the Software. Hardkernel Co., Ltd. (“Hardkernel�) is the "Licensor," regardless of whether you received the Software from Hardkernel directly or an authorized distributor.
1.1 "Software" means the specific software products, MALI DDK in object code form, and all related documentation provided to you.
- License
2.1 Hardkernel hereby grants Licensee a limited, non-exclusive, non-transferable, irrevocable, restricted right to use the Software in object code form only on the Computer System solely for the purpose of developing application software for Hardkernel devices using the Samsung Exynos 5422 System-on-a-Chip.
2.2 The Software except as permitted elsewhere in the Agreement, the rights granted to you above are conditional upon your compliance with the following obligation:
2.2.1 The Software should be used solely to develop application software for ARM Product.
2.2.2 The Software should be used with silicon chipset manufactured by Licensor.
2.2.3 You will not transfer, assign, lease, lend or rent the Software or documentation, use them to provide service bureau, time-sharing or other services, or otherwise provide or make the functionality thereof available to third parties except as expressly authorized in this Agreement.
2.2.4 You will not disassemble, decompile, reverse engineer, modify or create derivative works of the Software or documentation nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable mandatory local law.
2.2.5 You will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the Software or documentation as delivered or distributed by Hardkernel. You will reproduce such notices on all copies you are authorized to make of the Software.
- WARRANTIES AND LIMITATION OF LIABILITY
3.1 No Warranty. Hardkernel does not warrant that the Software will meet your requirements, that the Software will operate in combination with any other equipment, devices, software or systems, or that the operation of the Software will be error-free or uninterrupted. The Software is provided "AS IS" and “WITH ALL FAULTS.� HARDKERNEL DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NON-INFRINGEMENT. HARDKERNEL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. NO INFORMATION OR ADVICE GIVEN BY HARDKERNEL OR ITS AGENTS, EMPLOYEES, OR REPRESENTATIVES, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY REPRESENTATION OR WARRANTY. YOUR USE OF THE SOFTWARE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
3.2 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL HARDKERNEL BE LIABLE TO YOU FOR ANY DIRECT SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You may have other rights under applicable mandatory local laws.
- TERMINATION
4.1 Termination. You may terminate this Agreement at any time by ceasing your use of the Software and deleting all Software and documentation. Hardkernel will have the right to terminate this Agreement if you: (a) breach any material term of the Agreement, and if such breach is capable of cure, you fail to cure such breach within thirty (30) days after receiving written notice thereof; or (b) assert any claim against Hardkernel, its licensees or customers alleging that the Software infringes or misappropriates any of your intellectual property rights. Either party will have the right to terminate this Agreement if the other becomes insolvent or makes an assignment for the benefit of creditors, or a trustee or receiver is appointed for such other party or for a substantial part of its assets, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against such other party. Termination of this Agreement under this section terminates all licenses granted hereunder.
4.2 Effect of Termination. Upon termination or expiration of this Agreement, all Software licenses and rights to use Confidential Information that are granted thereunder shall terminate. Upon termination of this Agreement or expiration of the license term, you will promptly return to Hardkernel or destroy the applicable Software and confidential information and all copies and portions thereof, in all forms and types of media.
4.3 Survival. Sections 1, 2.2, 3, 4, and 5 will survive the termination of this Agreement.
- GENERAL
5.1 Confidentiality. You acknowledge and agree that the Software was developed at considerable time and expense and contains valuable trade secrets and confidential information. Accordingly, you agree to maintain the Software in confidence and except as expressly provided in Section 2 (Grant of License), you (i) will not disclose or provide access thereto to any person, or (ii) use the Software for any purpose not expressly authorized hereby, or permit or authorize any other person to do so. The restriction herein shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of you. Any combination of Hardkernel trade secrets and information that forms part of the Software shall not be deemed to be public merely because individual parts of the Software are in the public domain. You acknowledge that violations of the confidentiality obligations herein may cause Hardkernel irreparable injury for which an adequate remedy at law may not be available. Therefore, Hardkernel shall be entitled to seek all remedies that may be available under equity, including immediate injunctive relief, in addition to whatever remedies may be available at law.
5.2 Indemnification. To the extent permitted by law, you agree to indemnify, defend and hold harmless Hardkernel, its affiliates, directors, officers, and employees (each a "Hardkernel Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorneys fees and court costs) incurred by a Hardkernel Indemnified Party as a result of: (i) your breach of this Agreement; or (ii) any claims that the distribution, sale, offer for sale, use or importation of your product (excluding the Software as provided by Hardkernel) infringes or misappropriates any third party intellectual property or proprietary rights.
5.3 Export Control. You agree to comply fully with all relevant export laws and regulations, including those of the United States and the Member States of the European Union. These laws include restrictions on destinations, end-users and end use. You will ensure that neither the Software, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of applicable export laws; or (b) used for any purposes prohibited by applicable export laws, including but not limited to nuclear, chemical, or biological weapons proliferation. You will, at Hardkernel's request, demonstrate compliance with all such applicable export laws, restrictions, and regulations.
5.4 Assignment. You may not assign this Agreement, in whole or in part, by operation of law or otherwise. Any attempt to assign this Agreement without such consent will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
5.5 Governing Law and Jurisdiction. This Agreement, including all matters of construction, validity, and performance, shall be governed by and construed and enforced in accordance with the laws of the Republic of Korea (without giving effect to any conflict of law rule that would cause the laws of another jurisdiction to be applied). Any and all disputes between Hardkernel and You in connection with or arising out of this Agreement, which the parties are unable to resolve between themselves, shall be finally settled by arbitration. The arbitration shall be held in Seoul, Korea in accordance with the Rules of Arbitration of the International Chamber of commerce by one or more arbitrator(s) appointed in accordance with the said rules. The arbitration award rendered by the arbitrator(s) shall be final and binding upon the parties.
5.6 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
5.7 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action.
5.8 Entire Agreement; Modification; Interpretation. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of this Agreement will be effective only if in writing and signed by you and an authorized representative of Hardkernel. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
5.9 U.S. Government End Users. The Software is a "commercial item" as defined in FAR 2.101. Government software and technical data rights in the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license in technical data and software is provided in accordance with FAR 12.211 (Technical Data) and 12.212 (Computer Software) and, for Department of Defense purchases, DFAR 252.227-7015 (Technical Data -- Commercial Items) and 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). Accordingly, all U.S. Government End Users acquire Software with only those rights set forth herein.
END OF TERMS