Please scroll down and read the following end user Agreement carefully. This is a legal agreement ("Agreement") between You and Microsemi Storage Solutions, Inc. (“Microsemi”), for and on behalf of itself and its subsidiaries, which provides the terms of Your use of the software which You are trying to access or download that accompanies this Agreement (“Software”). If You are trying to access or download Software on behalf of Your employer or as a consultant or agent of a third party (either "Your Company"), You represent and warrant that You have the authority to act on behalf of and bind Your Company to the terms of this Agreement and everywhere in this Agreement that refers to You or Your, shall also include Your Company. By clicking "I Accept" or by copying and/or using the Software, You are agreeing to all of the terms and conditions stated in this Agreement. If You do not agree to these terms, do not click "I Accept", and do not download, copy and/or use the Software.
1. Definitions.
a) “Binary Files” means machine readable and executable versions of computer programming code.
b) "Documentation" means any and all information, written or otherwise, provided to You by Microsemi describing a Software, its operation and matters related to its use and any updated, improved or modified version(s) of such materials, in published written material, on magnetic media or communicated by electronic means.
c) “Modifications” means all or any modifications to Source Files made by You.
d) "Software" means the application programming interfaces (APIs), scripts, Binary Files and Source Files, and any updated, improved or otherwise modified version(s) thereof furnished by Microsemi solely for Your internal purposes; it may include software licensed by Microsemi from third parties.
e) “Source Files” means the human readable version of computer programming code.
2. License Grants. (a) Microsemi hereby grants to the You and the You accept, subject to this Agreement, a non-transferable, non-exclusive, personal, limited license to internally reproduce and use Binary Files and its associated Documentation solely for your internal business purposes. You shall not sublicense, distribute or permit third parties to use the Binary Files. You may distribute unmodified copies of the Binary Files to third parties, provided You retain all copyright and other proprietary notices contained in the Binary Files, and further provided You distribute the Binary Files to third parties solely in connection with Microsemi products. (b) Microsemi hereby grants to You and You accept, subject to this Agreement, a non-transferable, non-exclusive, personal, limited license to reproduce and modify the Source Files to create Modifications. You may distribute (in either source or compiled format) the Source Files to third parties, provided You retain all copyright and other proprietary notices contained in the Source Files, and further provided You distribute the Source Files to third parties solely in connection with Your Modifications and subject to a binding written agreement protecting Microsemi to the same extent as the terms of this Agreement. (c) You shall not be entitled to receive, use or have access to source data relating to any Software. All rights, title and interest in the Software and documentation shall remain the exclusive property of Microsemi or its licensors.
3. License to Microsemi. In partial consideration for the rights and licenses granted to You under Section 2, and to enable the "freedom to use" model of this Agreement, You agree to grant and do hereby grant to Microsemi 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 Your intellectual property rights in any Modifications to use, reproduce, display, and distribute such Modifications, and make, have made, use, lease, sell, offer for sale, import, export or otherwise transfer, under its current and future license models and distribution channels, any product which includes such Modifications.
4. Term and Termination. The term of this Agreement shall commence on the date You click “I Accept” or download any Software, whichever comes first. This Agreement or any license created hereunder may be terminated by Microsemi (i) if You breach the obligations referred to in Section 8, (ii) in the event of a material breach by You of any provision of this Agreement, where You fail to correct such breach within thirty (30) days of written notice of same, (iii) upon the insolvency, bankruptcy, reorganization, or assignment for the benefit of creditors of Your Company. Within 30 days after the date of termination of this Agreement, You shall furnish to Microsemi written notice certifying that the original and all copies, including partial copies, of the Software, any documentation and any material received from Microsemi or made in connection with this Agreement have been returned or destroyed. Section 3, 5, 6, 8, and 10 shall survive expiration or termination of this Agreement.
5. Limited Warranty. Microsemi does not warrant that any Software will meet Your requirements or will be error free. Microsemi DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SOFTWARE, OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT LICENSEE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. In addition, Microsemi expressly disclaims any warranty or representation to any person other than You with respect to the Software.
6. Limitation of Liability. MICROSEMI’s CUMULATIVE LIABILITY UNDER THIS AGREEMENT TO LICENSEE OR TO ANY THIRD PARTY FOR ALL CAUSES OF ACTION SHALL BE LIMITED TO AND NOT EXCEED THE GREATER OF THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE OR $100 USD, REGARDLESS OF WHETHER MICROSEMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR OTHERWISE. MICROSEMI SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, LOSS OF DATA, THIRD PARTY SOFTWARE, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. You acknowledge that, in providing You with the Software, Microsemi has relied upon Your agreement to be bound by the terms of this Agreement, including the obligation to obtain any necessary licenses from third parties. Further, You agree to indemnify and hold Microsemi harmless from any and all actual or threatened liabilities, claims or expenses caused by Your failure to comply with the terms of this Agreement, Your use of any Software, or Modifications made by You.
7. Maintenance, Installation and Training. The license to the Software does not include maintenance, installation or training. Any installation assistance provided by Microsemi hereunder shall be without liability or risk to Microsemi.
8. Protection of Licensed Materials. The Software and Documentation are the confidential and proprietary property of Microsemi (the “Confidential Information”). You agree (i) to use the Confidential Information only as necessary to exercise Your rights or fulfill Your 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 within Your Company not having a need to know or to any third party. Without limiting the foregoing, You 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. Nothing in this Agreement shall in any way convey to You any ownership rights or title in or to the Software. You may not: a) remove or modify any marks or proprietary notices of Microsemi, b) provide or make the Software available to any third party, except as expressly provided in this Agreement, c) use the Software to provide third party training for Microsemi products, d) assign this Agreement or give or transfer or export the Software (except as expressly provided in Section 2(b) of this Agreement) or an interest in them to another individual or entity, e) decompile, disassemble or reverse engineer (except to the extent permitted by applicable law) the Software, f) create derivative works of or based on the Software, or g) use any Microsemi name, trademark or logo.
9. Notices. Notices to You shall be sent by electronic mail to Your specified electronic mail address; and to Microsemi, to 1380 Bordeaux Drive, Sunnyvale, CA 94089, Attention: Contracts, with a copy to 1 Enterprise Aliso Viejo, CA 92656, Attention: Legal Department, or such new address as a party specifies to the other in writing or by facsimile to the numbers as may be specified by the parties from time to time and, if by mail notice shall be deemed received 5 days after posting and, if by facsimile, on the day such facsimile is sent provided it is sent on an ordinary business day.
10. Governing Law. This agreement is governed by the law of the State of California, USA. It is the complete and exclusive statement of agreement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. You agree that the exclusive and proper venue for redress of any claims will be in the State and Federal courts located in Orange County, California. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Microsemi that may be difficult to ascertain. Accordingly, You agree that Microsemi, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek immediate injunctive relief to enforce obligations under this Agreement.
11. General. Any terms and conditions of any purchase order or other instrument issued by You in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this agreement shall be of no force or effect. This agreement may be modified only by a written instrument duly executed by Microsemi and You. Any waiver by either party of any condition, part, term, or provision of this Agreement shall not be construed as a waiver of any other condition, part, term or provision or a waiver of any future event or circumstance. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.