Icom MR-1220 Series Instruction Manual page 71

subject the Licensed Software to an Excluded
License. An Excluded License means any license
that requires as a condition of use, modification and/
or distribution of software subject to the Excluded
License, that such software or other software
combined and/or distributed with such software be
(A) disclosed or distributed in source code form;
(B) licensed for the purpose of making derivative
works; or
(C) redistributable at no charge.
Section 3. Intellectual Property Rights
3.1 Subject to Freescale's ownership interest in the
underlying Licensed Software, all intellectual
property rights associated with, and title to, your
Authorized System will be retained by or will vest in
you.
3.2 Your modifications to the Licensed Software, and
all intellectual property rights associated with, and
title thereto, will be the property of Freescale. You
agree to assign all, and hereby do assign all rights,
title, and interest to any such modifications to the
Licensed Software to Freescale and agree to provide
all assistance reasonably requested by Freescale to
establish, preserve or enforce such right. Further,
you agree to waive all moral rights relating to your
modifications to he Licensed Software, including,
without limitation, any and all rights of identification
of authorship and any and all rights of approval,
restriction, or limitation on use or subsequent
modification.
Notwithstanding the foregoing, you will have the
license rights granted in Section 2 hereto to any such
modifications made by you or your licensor's.
Section 4. Patent Covenant not to Sue
4.1 As partial, material consideration for the rights
granted to you under this Agreement, you covenant
not to sue or otherwise assert your patents against
Freescale, a Freescale Affiliate or subsidiary, or a
Freescale licensee of the Licensed Software for
infringement of your Intellectual Property Rights by
the manufacture, use, sale, offer for sale, importation
or other disposition or promotion of the Licensed
Software and/or any redistributed portions thereof.
Section 5. Term and Termination
5.1 This Agreement will remain in effect unless
terminated as provided herein.
5.2 You may terminate this Agreement immediately upon
written notice to Freescale at the address provided
below.
5.3 Either party may terminate this Agreement if the
other party is in default of any of the terms and
conditions of this Agreement, and termination is
effective if the defaulting party fails to correct such
default within 30 days after written notice thereof by
the non-defaulting party to the defaulting party at the
address below.
5.4 Notwithstanding the foregoing, Freescale may
terminate this Agreement immediately upon written
notice if you:
(a) breach any of your confidentiality obligations or the
license restrictions under this Agreement;
(b) become bankrupt or insolvent, or file a petition
therefore;
(c) make an assignment for the benefit of its creditors;
(d) enter proceedings for winding up or dissolution;
(e) are dissolved; or
(f) are nationalized or is subject to the expropriation of
all or substantially all of its business or assets.
5.5 Upon termination of this Agreement, all licenses
granted under Section 2 will expire, except that any
licenses extended to end-users pursuant to Sections
2.2 (c), 2.2 (d) and 2.3 (b) which have been granted
prior to such termination will survive.
5.6 After termination of this Agreement by either party
and upon Freescale's written request, you will,
at your discretion, return to the Freescale any
confidential information including any and all copies
thereof or furnish to Freescale at the address below,
a statement certifying, with respect to the Licensed
Software delivered hereunder that the original and all
copies, except for archival copies to be used solely
for dispute resolution purposes, in whole or in part,
in any form, of the Licensed Software have been
destroyed.
5.7 Notwithstanding the termination of this Agreement for
any reason, the terms of Sections 1, 2.5 - 2.12, 3, 4,
5.6, 5.7, 7 and 8 will survive.
Section 6. Warranty
6.1 Freescale warrants that for the 30 day period
following your download of the Licensed Software
that the Licensed Software as delivered is free of
material defects in materials and workmanship.
6.2 If Licensed Software is not as warranted, Freescale
will, at its sole option, and as your exclusive remedy,
either refund the fees associated with such Licensed
Software, repair, or replace with the same or
equivalent products that meet this warranty. This
warranty does not apply to Licensed Software that
has been subjected to improper testing, assembly,
mishandling, modification, or misuse, whether
by you or by others. This warranty will not be
expanded, and no obligation or liability will arise,
due to technical advice or assistance, qualification
or testing data, computerized data, facilities or
service Freescale may provide in connection with the
Licensed Software.
6.3 Freescale does not warrant that the functions
contained in the Licensed Software will meet your
requirements or that the operation of the Licensed
Software will be uninterrupted or error free.
6.4 The warranty recited in this Section 6 extends only
to you.
6.5 THIS WARRANTY RECITED IN THIS SECTION
6 IS IN LIEU OF ALL OTHER WARRANTIES,
INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY
OR FITNESS, AND THE WARRANTY AGAINST
INFRINGEMENT SPECIFIED IN THE UNIFORM
COMMERCIAL CODE. ALL OTHER WARRANTIES
ARE EXPRESSLY DISCLAIMED TO THE FULL
EXTENT SUCH MAY BE DISCLAIMED BY LAW.
Section 7. Indemnification
7.1 You will defend, indemnify and hold harmless
Freescale from any and all damages claims,
liabilities, and costs (including reasonable attorney's
fees) related to your (including contractor's and
licensee's) use of the Licensed Software and/or (2)
your (including contractor's and licensee's) violation
of the terms and conditions of this Agreement. You
are excused from this obligation to the extent any
such claim arises solely from the Licensed Software
as provided by Freescale.
Section 8. General Provisions
8.1 Amendments and Waivers. No amendment of any
provision of this Agreement will be valid unless stated
in writing and signed by authorized representatives
of each of the parties. No waiver by any party of
any default, misrepresentation or covenant herein,
whether intentional or not, will be deemed to extend
any prior or subsequent default, misrepresentation,
or covenant hereunder or affect in any way any
rights arising by virtue of any prior or subsequent
occurrence.
8.2 Choice of Law. This Agreement will be
governed by, construed, and enforced in accordance
with the laws of the State of Texas.
8.3 Confidential Information. You will treat the Licensed
Software as confidential information and you agree
to retain the Licensed Software in confidence
perpetually with respect to Licensed Software in
source code form (human readable), or for a period
of five (5) years from the date of termination of this
Agreement, with respect to all other parts of the
Licensed Software. During this period you may
not disclose any part of the Licensed Software to
others than employees or contractors who have a
need to know of the Licensed Software and who
have executed written agreements obligating them
to protect such Licensed Software. You agree
to use the same degree of care, but no less than
a reasonable degree of care, with the Licensed
Software as you do with your own confidential
information. You may disclose Licensed Software
to the extent required by a court or under operation
of law or order provided that you notify Freescale of
such requirement prior to disclosure, that you only
disclose information required, and that the you allow
Freescale the opportunity to object to such court or
other legal body requiring such disclosure.
8.4 Counterparts. This Agreement may be executed
in one or more original counterparts, all of which
together will constitute one agreement, and facsimile
signatures will have the same effect as original
OPEN SOURCE LICENSES
signatures.
8.5 Entire Agreement. This Agreement, including
its attachments, constitutes the entire agreement
between the parties regarding the subject matter
hereof, and supersedes all prior communications,
negotiations, understandings, agreements or
representations, either written or oral, by or among
the parties regarding such subject matter.
8.6 Limitation of Liability. EXCLUDING
LIABILITY FOR A BREACH OF SECTION 8.3
(CONFIDENTIALITY), BREACHES OF THE
LICENSE GRANTS IN SECTION 2, OR CLAIMS
UNDER SECTION 7, IN NO EVENT WILL EITHER
PARTY BE LIABLE, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, FOR ANY INCIDENTAL,
SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES, INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR ANY LOSS OF USE,
LOSS OF TIME, INCONVENIENCE, COMMERCIAL
LOSS, OR LOST PROFITS, SAVINGS, OR
REVENUES, TO THE FULL EXTENT SUCH
MAY BE DISCLAIMED BY LAW. FREESCALE'S
TOTAL LIABILITY FOR ANY AND ALL COSTS,
DAMAGES, CLAIMS, OR LOSSES WHATSOEVER
ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR PRODUCT(S) SUPPLIED
UNDER THIS AGREEMENT IS LIMITED TO
THE AGGREGATE AMOUNT PAID BY YOU
TO FREESCALE IN CONNECTION WITH THE
LICENSED SOFTWARE TO WHICH LOSSES OR
DAMAGES ARE CLAIMED.
8.7 Notices.
All notices and communications under this
Agreement will be made in writing, and will be
effective when received at the following addresses:
Freescale:
Freescale Semiconductor, Inc.
6501 William Cannon Drive, West Austin,
Texas 78735
ATTN: General Manager, Multimedia Applications
Division
With a copy to:
Freescale Semiconductor, Inc.
6501 William Cannon West OE62 Austin,
Texas 78735
ATTN: Law Director, Multimedia Applications
Division
You: The address provided at registration will be used.
Either party may change its notice information upon
notice to the other party.
8.8 Relationship of the Parties. The parties are
independent contractors. Nothing in this Agreement
will be construed to create any partnership, joint
venture, or similar relationship. Neither party is
authorized to bind the other to any obligations with
third parties.
8.9 Severability. If any provision of this Agreement is
held for any reason to be invalid or unenforceable
the remaining provisions of this Agreement will
be unimpaired and, unless a modification or
replacement of the invalid or unenforceable provision
is further held to deprive a party of a material benefit,
in which case the Agreement will immediately
terminate, the invalid or unenforceable provision
will be replaced with a provision that is valid and
enforceable and that comes closest to the parties'
intention underlying the invalid or unenforceable
provision.
8.10 Succession and Assignment. This Agreement
will be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
Neither party may assign this Agreement, or any
part of this Agreement, without the prior written
approval of the other party, which approval will not be
unreasonably withheld or delayed.
8.11 Unauthorized Use. The Licensed Software is not
intended or authorized for use in anti-personnel
landmines, and you agree that it will not be used
for this purpose. Upon request from Freescale, you
will furnish a written certification that you do not
use or permit the use of the Licensed Software in
anti-personnel landmines. The Licensed Software
is not intended or authorized for use in products
surgically implanted into the body, for life support or
for other products in which a product failure could
cause personal injury or death. If you permit the
uses of Licensed Software for these unintended
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