MARVELL LIMITED USE LICENSE AGREEMENT

Unified Marvell SOHO Driver



The use of the Deliverables, as set forth in Exhibit A attached hereto, is exclusively governed by the terms and conditions of this limited use license agreement (the “Agreement”), by and between MARVELL ASIA PTE. LTD. a Singapore  corporation with its principal place of business at Tai Seng Centre, 3 Irving Road #10-01, Singapore 369522 (“Marvell”), and you, your employer or other entity for whose benefit you act (“Licensee”).  By accessing, downloading, installing or using the Deliverables, you represent and warrant that (1) Licensee accepts the terms of this Agreement and (2) if the Licensee is an entity, you are authorized to bind Licensee to the terms and conditions of this Agreement.  BY SELECTING THE “ACCEPT” OPTION BELOW, LICENSEE IS DEEMED TO HAVE ACCEPTED AND AGREED TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THIS AGREEMENT IS EFFECTIVE UPON THE DATE OF SUCH ACCEPTANCE BY LICENSEE (THE “EFFECTIVE DATE”).  FOR THE AVOIDANCE OF DOUBT, THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS NOT A REQUIREMENT TO THE EFFECTIVENESS AND ENFORCEABILITY OF THIS AGREEMENT THAT MARVELL EXECUTE THIS AGREEMENT.



1.     DEFINITIONS

1.1              “Binary Code” means the executable binary code compiled or otherwise derived from Source Code.

1.2              “Confidential Information” means (i) the Deliverables and any portions, components or sub-files thereof; (ii) the structure, sequence and organization of the Deliverables and the concepts, methods of operations and ideas disclosed therein; (iii) any trade secrets and know-how relating to the Deliverables and/or the Marvell Product; and (iv) the terms and conditions of this Agreement.

1.3              “Deliverables” means the software, firmware, Documentation and other technology provided by Marvell to Licensee or identified by Marvell pursuant to this Agreement.

 1.4              “Derivatives” means: (i) for copyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast, transformed or adapted; and (ii) for material protected by trade secret, any new material derived from or employing such existing trade secret.

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1.6              “Intellectual Property” means all intellectual property rights worldwide arising under statutory or common law, including patent rights, trade secret rights, copyrights, or any analogous or similar right in any jurisdiction.  For purposes of this Agreement, Intellectual Property excludes trademarks.

1.7              “Licensed Patent Claims” means the claims of the patents owned by Marvell that, in the absence of a license from Marvell, would be directly infringed by the exploitation of the Licensee’s Product or Licensee’s Software (as combined or used with the Licensee’s Product), excluding any third-party technology, products or services that may be combined or used with Licensee’s Product or Licensee’s Software.

1.8              “Licensee’s Product” means a product sold by or for Licensee that incorporates a Marvell Product.

1.9              “Licensee’s Software” means software or a platform owned by Licensee that incorporates the Deliverables or any Derivatives thereof for use solely with a Marvell Product.

1.10          “Marvell Product” means Marvell’s proprietary silicon solutions designed to operate with the Deliverables.

1.11          “Open Source Software” means all software that is distributed under an open source license, which includes (i) any license approved by the Open Source Initiative or any similar license and (ii) any license that meets the Open Source Definition or the Free Software Definition, including without limitation the GNU General Public License, the GNU Lesser General Public License, the Mozilla Public License, the Common Development and Distribution License, the Eclipse Public License and all Creative Commons “sharealike” licenses.

1.12          “Source Code” means the human readable version of software or firmware.



2.                  LIMITED LICENSES

2.1              Subject to Licensee’s compliance with the terms and conditions of this Agreement, Marvell hereby grants to Licensee a non-transferable, non-sublicensable (except as expressly provided in Section 5 below), non-exclusive, revocable, royalty-free, license:

2.1.1        Under the copyrights and trade secrets owned by Marvell to (i) internally use and copy the Deliverables and modify the Deliverables that are provided by Marvell to Licensee in Source Code, solely for purposes of enabling Licensee's Software and Licensee's Product to operate exclusively with a Marvell Product; (ii) internally use the Binary Code of the Deliverables for Licensee’s evaluation, testing and development of Licensee’s Software and Licensee’s Product; and (iii) copy, publicly perform, publicly display and distribute, through multiple tiers of distribution, the Deliverables solely in Binary Code form as integrated or used with Licensee’s Software and/or a Licensee’s Product and any Derivatives of the Deliverables created by Licensee included in Licensee’s Software and/or Licensee’s Product; and

2.1.2        Under the Licensed Patent Claims, to use, make, have made, import, sell and offer to sell the Licensee’s Product and Licensee’s Software.



3.         LICENSE RESTRICTIONS; OWNERSHIP AND GRANT-BACK LICENSE TO DERIVATIVES

3.1              Licensee will not, and will not allow any third party to (i) use the Deliverables or Derivatives thereof in conjunction with any product other than the Marvell Product; (ii) license, sell or otherwise distribute the Deliverables and/or Derivatives thereof as a standalone product; (iii) modify, enhance, adapt, decrypt, disassemble, decompile, or reverse engineer the Deliverables provided in Binary Code form, (iv) distribute or disclose (subject to Section 5) the Source Code of any Deliverables and/or Derivatives thereof to any third party without the prior written approval of Marvell; and/or (v) subject the Deliverables, or any portion thereof, to any license obligations applicable to the Open Source Software (unless subject to the Open Source Software license identified by Marvell as applicable to such Open Source Software as of the date of Marvell’s delivery of such Deliverables to Licensee).  If Licensee is a European Union (“EU”) resident, information necessary to achieve interoperability of the Deliverables with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available from Marvell upon written request.

3.2              Marvell and its suppliers own all right, title and interest in and to the Deliverables and all Intellectual Property rights therein. Licensee will not remove any copyright or patent marking notice from the Deliverables. Licensee agrees that each copy of Licensee’s Software that includes all or any portion of the Deliverables or Derivatives thereof will be accompanied by and subject to a Binary Code-limited software license, the terms and conditions of which will be at least as protective of the Deliverables and Derivatives thereof as the terms and conditions Licensee uses for its own software products and the terms and conditions governing this Agreement. Licensee expressly agrees not to distribute any Deliverables or Derivatives thereof pursuant to Section 2.1.1(iii) to any third party that has not accepted the terms of such Binary Code-limited software license.  Ownership of the Open Source Software will be subject to and in accordance with the applicable Open Source Software license.  Except as expressly provided herein, this Agreement does not grant Licensee any rights under any of Marvell’s Intellectual Property rights or trademarks.  Marvell retains all rights not explicitly granted herein.

3.3              Licensee will own the copyrights and trade secrets in Derivatives of the Deliverables created by or for Licensee pursuant to this Agreement, subject to Marvell’s underlying ownership rights in the Deliverables. Licensee hereby grants back to Marvell and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, under its Intellectual Property rights, to use, make, have made, sell, offer to sell, import, copy, display, publicly perform, publicly display, distribute through multiple tiers of distribution, create or have created Derivatives and otherwise exploit (a) the Derivatives of the Deliverables created by or for Licensee pursuant to this Agreement, in whatever form, and (b) any comments, suggestions, ideas, suggestions, or any other feedback provided to Marvell by or on behalf of Licensee with respect to any of the Deliverables or the Marvell Product. Marvell will own all Derivatives that are made and Intellectual Property rights arising from Marvell or its affiliates’ exercise of the foregoing license.



4.         OPEN SOURCE SOFTWARE

The Open Source Software included in or used with the Deliverables is subject to the license terms identified or reproduced in (i) the text files or file headers associated with the Open Source Software; (ii) within the Source Code of the Open Source Software that is provided to Licensee pursuant to this Agreement; or (iii) a written notice as may be provided by Marvell to Licensee from time to time during the term of this Agreement via email at Licensee’s email address provided to Marvell through the Marvell registration process required for licensees to access the Deliverables.  In the event of any conflict between this Agreement and the applicable Open Source Software license terms, such Open Source Software license terms will control solely with respect to the applicable Open Source Software.



5.         USE OF SUBCONTRACTORS

Licensee may sublicense its rights under subsections (i) and (ii) of Section 2.1.1 of this Agreement solely to its authorized subcontractors working on site at Licensee’s premises, provided that (i) Licensee first requires each such subcontractor to sign a written agreement with Licensee binding the subcontractor to the same restrictions concerning the Deliverables and Derivatives thereof as are contained in this Agreement; and (ii) Licensee remains fully liable to Marvell for the actions and inactions of each such subcontractor. Licensee will notify Marvell in writing of its intention to provide access to the Deliverables to subcontractors and of any breach by a subcontractor of its obligations under this Section 5.



6.         DELIVERY

The applicable Deliverables will be delivered to Licensee via Marvell’s extranet or such other secure electronic means as Marvell may use in its reasonable discretion.



7.         CONFIDENTIAL INFORMATION

Except as expressly provided in Section 5, Licensee will not disclose to any third party, or use in any manner not expressly permitted herein, any Confidential Information.  Licensee agrees to take all reasonable measures to protect Confidential Information and prevent unauthorized disclosure, which measures will be at least as stringent as those measures Licensee takes to protect its own confidential information of like kind.  Without in any way limiting the foregoing, Licensee will restrict access to Confidential Information, including but not limited to the Deliverables, to Licensee employees and individual third party contractors who have complied with the requirements of Section 5 who have a “need-to-know” to exercise the license rights granted to Licensee herein.  Notwithstanding the above, all Confidential Information, and any documents and other tangible objects containing or representing Confidential Information and all copies thereof will be and remain the exclusive property of Marvell, its affiliates and their respective suppliers.



8.         DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DELIVERABLES AND CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS OR SUFFICIENCY FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, QUIET ENJOYMENT OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.  MARVELL, ITS AFFILIATES AND THEIR SUPPLIERS DISCLAIM ANY WARRANTY THAT THE DELIVERABLES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE.



9.         LIMITATION OF LIABILITY

IN NO EVENT WILL MARVELL, ITS AFFILIATES OR THEIR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT OR LICENSEE’S USE OF OR INABILITY TO USE THE DELIVERABLES AND/OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUES, BUSINESS INTERRUPTION OR LOSS OF INFORMATION (INCLUDING IN CONNECTION WITH ANY DATA BREACH OR CYBERSECURITY INCIDENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE COLLECTIVE LIABILITY OF MARVELL, ITS AFFILIATES AND THEIR SUPPLIERS UNDER THIS AGREEMENT IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY LICENSEE TO MARVELL HEREUNDER OR U.S. ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  IN JURISDICTIONS THAT PROHIBIT EXCLUSION OF LIABILITY OR LIMITATION OF IMPLIED WARRANTIES REGARDLESS OF THE PARTIES’ CHOICE OF APPLICABLE GOVERNING LAW, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY BE LIMITED IN THEIR APPLICATION TO LICENSEE AND, DEPENDING ON LOCAL LAW, LICENSEE MAY HAVE OTHER SPECIFIC LEGAL RIGHTS.



10.     TERM AND TERMINATION

10.1          The licenses granted hereunder commence on the Effective Date and will continue until terminated. Licensee may terminate this Agreement at any time by prior written notice to Marvell.  Without prejudice to any other right or remedy which may be available to it, Marvell may terminate this Agreement, upon the provision of written notice to Licensee, if Licensee: (i) commits a material breach of any term or condition of this Agreement, including without limitation the license restrictions set forth in Section 3; (ii) makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes subject to the supervision of a bankruptcy tribunal; (iii) has an order made against it, or passes a resolution, for its winding-up or has a lien holder take possession or has a receiver or similar officer appointed over all or substantially all of its property or assets; (iv) challenges or participates in challenging in legal or administrative proceedings the validity or enforceability of any Licensed Patent Claims; or (v) undergoes a change of control or divestiture of Licensee’s business assets to which this Agreement relates.  After the fifth (5th) anniversary of the Effective Date of this Agreement, Marvell may also terminate this Agreement without cause upon one-hundred and twenty (120) days’ prior written notice.

10.2        Upon expiration or termination of this Agreement for any reason, Licensee agrees to immediately cease use of, and to destroy, at Marvell’s sole option, all copies of the Deliverables, all Derivatives thereof and any other Confidential Information of Marvell, its affiliates or suppliers in Licensee’s or its subcontractors’ possession, custody or control, together with all copies and merged portions in any form, including but not limited to deletion of the foregoing from Licensee’s computers, and to certify such return or destruction in writing.  In the event of termination of this Agreement, all licenses granted to Licensee and sublicenses granted pursuant to Section 5 will terminate immediately.  Licensee and its customers will have the right to continue using the Deliverables solely as incorporated into Licensee Products and/or Licensee Software prior to the termination or expiration of the Agreement.

10.3        Notwithstanding anything to the contrary contained herein, the introductory paragraph of this Agreement and the provisions of Sections 1, 3, 4, 7, 8, 9, 10.2, 11, 12 and 13 will survive any termination of this Agreement.



11.     EXPORT CONTROLS

Licensee agrees that it will not export, reexport or transfer the Deliverables, Derivatives thereof, Confidential Information or any products developed with or utilizing the Deliverables, Derivatives thereof or Confidential Information, in violation of any applicable laws or regulations of the United States or the country where the Deliverables or Confidential Information were obtained.  Licensee is solely responsible for obtaining any licenses or authorizations required for Licensee to export, reexport, transfer or import the Deliverables, Derivatives thereof, Confidential Information and Licensee’s Software and Licensee’s Product.


12.     UNITED STATES GOVERNMENT RESTRICTED RIGHTS
The Deliverables are “Commercial Items(s)” 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 or 48 C.F.R. § 227.7202, as applicable.  Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Licensee will comply with all laws and regulations applicable to the acquisition of Commercial Computer Software and Commercial Computer Software Documentation by the U.S. Government or any contractor therefor.



13.     MISCELLANEOUS

13.1          Licensee will not assign or otherwise transfer this Agreement, the license(s) granted, or any of its rights and obligations hereunder, whether in whole or in part, including by operation of law, upon a change of control of Licensee or sale of Licensee’s assets to which this Agreement relates or similar transaction, without the prior written consent of an authorized signatory of Marvell. This Agreement will bind and inure to the benefit of the parties and any permitted successors and assigns. Any purported assignment or transfer of this Agreement that is not in accordance with this Section 13.1 will be of no force or effect. Licensee will provide written notice to any successor to Licensee or its assets to which this Agreement relates of Marvell’s rights and Licensee’s obligations hereunder prior to the consummation of the change of control or sale of Licensee’s business assets or similar transaction.

13.2          Licensee acknowledges that its breach of this Agreement may cause irreparable harm and significant injury to Marvell in an amount that may be difficult to ascertain and for which a remedy at law may be inadequate.  Accordingly, Licensee agrees that, in addition to any other rights and remedies it may have, Marvell will have the right to seek injunctive relief in any court of competent jurisdiction to enforce Licensee’s obligations under this Agreement.

13.3          This Agreement (and the rights and obligations of the parties with respect to their relationship under this Agreement) will be construed and interpreted in accordance with the laws of the United States and State of California, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction.  The parties irrevocably consent to the jurisdiction of all federal and state courts in California, and agree that venue will lie exclusively in Santa Clara County, California. The parties specifically disclaim the United Nations Convention on Contracts for the International Sale of Goods.

13.4          Except as set forth in Section 4, when any notice is required or authorized hereunder, such notice will be given in writing by recognized delivery service or personal delivery addressed to the other party.  Notices will be sent to Licensee at the address provided by Licensee during the Marvell registration process required to obtain access to the Deliverables and to Marvell at the address set forth in the introductory paragraph of this Agreement, with a copy to Marvell Semiconductor, Inc., 5488 Marvell Lane, Santa Clara California 95054, U.S.A., Attn: Legal Department.  Either party may change the address for notice hereunder by providing the other party with ten (10) days prior written notice.

13.5          A waiver of any default hereunder or of any of the terms or conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but will apply solely to the instance to which such waiver is directed.  The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

13.6          If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the remainder of this Agreement, will continue in full force and effect.

13.7          This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof.  This Agreement supersedes all prior written or oral agreements, communications, and understandings between the parties with respect to the subject matter hereof.  This Agreement may be amended, supplemented, changed or modified only by a writing signed by both parties, except that any subsequent version of this Agreement made available by Marvell and accepted by Licensee will be binding on the parties upon Licensee’s acceptance of such subsequent version.

13.8          No provision of this Agreement is intended to confer any rights or benefits upon any third party. Each party is acting as, and will be considered, an independent contractor, and no relationship of partnership, joint venture, employment, franchise, agency or similar arrangement is being created pursuant to or by virtue of this Agreement. Neither party will be considered the author of this Agreement for the purpose of interpreting any provision herein. This Agreement is executed in English and no translation of this Agreement will have any effect on its interpretation.





EXHIBIT A





Deliverables (UMSD Driver Suite):

Marvell’s driver software that enables operation of the Marvell Product constituting Marvell’s proprietary Link Street family of SOHO Ethernet Switches (the “Unified Marvell SOHO Driver” driver suite, also referred to as “UMSD” ), and any Marvell specified documentation thereon.  The Deliverables shall be provided in Marvell’s sole discretion, in either source code or object code format, and include the following files:

Switch driver and API (source)

Sample code for switch configuration (source)

Compilation tools (source)

Description:

•              Marvell’s UMSD driver suite provides an OS and platform independent set of software drivers for use with the Marvell Product.
