ALVARION EMBEDDED SOFTWARE AND SOFTWARE DRIVER LICENSE AGREEMENT THIS IS A SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) BETWEEN ALVARION LTD., AN ISRAELI CORPORATION (“ALVARION”), AND THE END USER (“LICENSEE”), EACH A “PARTY” AND TOGETHER, THE “PARTIES.” PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS YOUR USE OF ALVARION’S PROPRIETARY SOFTWARE MBEDDED IN ALVARION HARDWARE PRODUCTS (“EMBEDDED SOFTWARE”), ALVARION’S PROPRIETARY DRIVER SOFTWARE INCLUDED WITH SUCH HARDWARE PRODUCTS OR INTENDED FOR USE WITH SUCH ARDWARE PRODUCTS (“DRIVER SOFTWARE”), AND ANY ACCOMPANYING DOCUMENTATION (“DOCUMENTATION”) (COLLECTIVELY, THE “SOFTWARE”). BY: (1) USING THE HARDWARE IN WHICH THE SOFTWARE IS EMBEDDED (IN THE CASE OF EMBEDDED SOFTWARE) OR WITH WHICH THE SOFTWARE IS DESIGNED TO OPERATE (IN THE CASE OF DRIVER SOFTWARE), (2) CLICKING ON THE “I AGREE” BUTTON FOLLOWING THIS AGREEMENT, OR (3) AUTHORIZING ALVARION (OR ITS AUTHORIZED AGENTS) TO INSTALL THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT ON BEHALF OF YOURSELF PERSONALLY OR THE ENTITY OR INDIVIDUAL BY WHICH YOU ARE EMPLOYED AND ARE REPRESENTING AND WARRANTING THAT YOU HAVE ADEQUATE LEGAL POWER AND CAPACITY TO ENTER INTO THIS AGREEMENT AND ARE AUTHORIZED TO BIND THE ENTITY OR INDIVIDUAL BY WHICH YOU ARE EMPLOYED. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OR DO NOT UNDERSTAND THESE TERMS, YOU MUST: (1) CLICK THE “I DO NOT AGREE” BUTTON; AND (2) NOT ACCESS OR OTHERWISE USE THE SOFTWARE.
- Grant of License. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of all Product Fees (as defined below), Alvarion hereby grants to Licensee, and Licensee hereby accepts, a limited, non-exclusive, revocable, non-sublicensable, and non-transferable license to use the Software in object code format only and solely for the purpose designated by Alvarion in the Documentation: exclusively in conjunction with the specific Alvarion hardware product (the “Product”): (i) in which the Software is embedded (in the case of Embedded Software); or (ii) with which the Software is designed to operate (in the case of Driver Software).
- Ownership. Except for the limited rights expressly granted herein, the license granted hereunder does not transfer to Licensee or any third party any title or any proprietary or intellectual property rights to the Software or the Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith. Nothing in this Agreement shall be construed to convey any title or ownership rights to Licensee. The Software, in whole or in part, and all copies thereof, are and shall remain the sole and exclusive property of Alvarion and its licensors. All rights not expressly granted herein are hereby reserved to Alvarion and its licensors.
- Audit Rights. Alvarion, with reasonable prior notice to Licensee, shall have the right to audit Licensee’s usage of the Software and Licensee’s compliance with this Agreement.
- Breach by Licensee. Alvarion shall have the right to immediately terminate this Agreement, the license granted hereunder, and Licensee’s use of the Software in the event Licensee breaches this Agreement. Upon termination, Licensee shall cease using the Software and the Product. Termination of this Agreement shall not limit Alvarion from pursuing any other remedies available to it, including, but not limited to, injunctive relief.
- Survival. The Parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.
- Certain Restrictions. Licensee shall not use, copy or convey the Software except as specifically authorized under this Agreement. Without limiting the generality of the foregoing sentence, Licensee shall not: (a) modify, disassemble, reverse compile, reverse engineer, reproduce, create derivative works or modifications of the Software or any part thereof (except with respect to Third Party Products (as defined below) which are provided subject to licenses that expressly permit such activities, and then only with respect to such Third Party Products); (b) provide or make available the Software or related materials in any manner, including but not limited to flow charts, logic diagrams, technical data and code, in any form, to any third person or entity; (c) sublicense, rent, lease, assign, transfer or otherwise convey the Software to any other person or entity; or (d) use the Software on a “service bureau” basis. Licensee may make one (1) copy of the Software solely for back-up or archival purposes. The license granted herein shall not cover any updates or upgrades to the Software. Except for the express license granted herein, no other licenses are granted by Alvarion by implication or otherwise.
- Copyright. Licensee shall not to remove or destroy any proprietary marking, legends, notices, or license documents (collectively, “Proprietary Notices”) placed upon or contained with or within the Software. Proprietary Notices may appear in any of several forms, including machine-readable form.
- Third Party Components. Licensee acknowledges that the Software may contain or be accompanied by certain third party software products which may be provided subject to licenses which disclaim all warranties, express or implied, including, without limitation, the Apache License, the Lesser General Public License, and the BSD License (“Third Party Components”). ALVARION AND ITS RESPECTIVE THIRD PARTY LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR SUITABILITY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Third Party Components may be accompanied by certain notices or license documentation relating to such Third Party Components (collectively, the “Third Party Notices”). Licensee shall comply with the terms of all Third Party Notices governing Licensee’s use of such Third Party Components.
- Certain Responsibilities of Licensee. Licensee is responsible for ensuring that it holds a valid license for the use of the Software and that it is in compliance with the terms and conditions of this Agreement. Licensee is exclusively responsible for the installation, supervision, management, support and control of use of the Software by Licensee, its agents and employees.
- Product Fees. The license granted hereunder shall be subject to Licensee’s timely and full payment to Alvarion of all applicable fees due for its use of the Products, if any (the “Product Fees”).
- LIMITED WARRANTY. Alvarion represents and warrants that the Software, excluding all Third Party Components, shall substantially conform in all material respects to the technical specifications contained in the Documentation as it exists on the date the Software is delivered to Licensee, for a period of 90 days from the date of such delivery. Alvarion’s sole obligation under this warranty shall be limited to using its reasonable commercial efforts to correct defects in the Software and to supply Licensee with a corrected version of the Software, as soon as practicable after Licensee has notified Alvarion of such defects, in accordance with the provisions of the applicable support agreement in effect between Alvarion and Licensee, if any. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, ALVARION DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED ON THE SOFTWARE (INCLUDING ALL THIRD PARTY COMPONENTS) FURNISHED HEREUNDER, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR BY USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALVARION DOES NOT WARRANT: (1) THAT OPERATION OF ANY OF THE SOFTWARE (INCLUDING ALL THIRD PARTY COMPONENTS) SHALL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, OR (2) THAT THE SOFTWARE (INCLUDING ALL THIRD PARTY COMPONENTS) SHALL MEET LICENSEE’S OPERATIONAL REQUIREMENTS. ALVARION’S WARRANTY OBLIGATIONS HEREUNDER SHALL BE VOID IF ANY PORTION OF THE SOFTWARE (INCLUDING ANY THIRD PARTY COMPONENTS) IS MODIFIED IN WHOLE OR IN PART WITHOUT ALVARION’S PRIOR WRITTEN CONSENT.
- LIMITATION OF LIABILITY AND INDEMNIFICATION. IN NO EVENT SHALL ALVARION, ITS LICENSORS, AGENTS OR SUPPLIERS BE LIABLE TO LICENSEE FOR ANY OF THE FOLLOWING: (A) DAMAGES BASED ON ANY THIRD PARTY CLAIM; (B) LOSS OF, OR DAMAGE TO, LICENSEE’S RECORDS, FILES OR DATA; OR (C) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE) ARISING OUT OF THIS AGREEMENT OR OTHERWISE OUT OF LICENSEE USE OF THE SOFTWARE (INCLUDING ANY THIRD PARTY COMPONENTS) OR THE DOCUMENTATION, EVEN IF ALVARION, ITS AGENTS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ALVARION’S TOTAL AGGREGATE LIABILITY RELATED TO THIS AGREEMENT OR OTHERWISE ARISING OUT OF LICENSEE USE OF THE SOFTWARE (INCLUDING ANY THIRD PARTY COMPONENTS) OR THE DOCUMENTATION EXCEED ONE THOUSAND UNITED STATES DOLLARS (US$1,000).
NOTHING IN THIS SECTION WILL CONFER ANY RIGHT OR REMEDY UPON LICENSEE TO WHICH IT WOULD NOT OTHERWISE BE LEGALLY ENTITLED.
Licensee shall, at its sole expense, defend or settle any suit or claim brought against Alvarion, its licensors, agents or suppliers, and shall indemnify and hold Alvarion and its licensors, agents and suppliers and their respective officers and directors harmless from and against any and all liabilities and expenses (including reasonable legal expenses) incurred, resulting from or arising out of a claim that Licensee’s unauthorized use of the Software (including any Third Party Components) infringes any third party rights.
- Regulations. Licensee shall comply fully with all applicable laws and regulations, including export restrictions and regulations, applicable to the Software and Documentation.
- “Confidential Information” means any and all technical, business, client or proprietary information disclosed by Alvarion to Licensee, directly or indirectly, including, but not limited to, information regarding Alvarion, its licensors’, agents’ or suppliers’ business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, software, product plans, services, relationships with any third party, client lists and information regarding Alvarion, its licensors’, agents or suppliers’ employees, clients, vendors, consultants and affiliates which is in tangible form and is marked confidential or proprietary, and, without limiting the foregoing, the Software and the Documentation.
- During the term of this Agreement and thereafter, Licensee shall treat as confidential all Confidential Information, shall not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing by Alvarion, shall implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of Confidential Information and shall not disclose Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of Licensee under this Agreement and only if disclosure to such third party is made subject to written confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, Licensee shall use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care. Except as expressly authorized in this Agreement, Licensee shall not copy Confidential Information without Alvarion’s prior written consent.
- Licensee shall have the right to disclose Confidential Information only pursuant to the written order or written requirement of a court, administrative agency, or other governmental body and only provided that Licensee provides prompt, advance written notice thereof to enable Alvarion to seek a protective order or otherwise prevent such disclosure if Alvarion so elects. In the event such a protective order is not obtained by Alvarion, Licensee shall disclose only that portion of the Confidential Information which its legal counsel advises in writing that it is legally required to disclose. Confidential Information so disclosed shall continue to be deemed Confidential Information as between the Parties hereto.
- If Licensee breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, Alvarion is entitled to obtain equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.
- Upon Alvarion’s written request, Licensee shall promptly return or destroy, at Alvarion’s option, all tangible copies of Confidential Information.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, including Israel’s copyright laws, but excluding that body of law pertaining to conflict of laws. Any action arising under or relating to this Agreement shall be brought solely in the appropriate court of Tel-Aviv, Israel. The parties hereto consent to the exclusive jurisdiction of such court, and expressly waive any objection to the jurisdiction or convenience of such courts; provided, however, that nothing in this Section shall prevent
Alvarion from seeking interim or any other equitable relief, in any jurisdiction it deems fit.
- Assignment. Alvarion may sell, transfer, assign or delegate, in whole or in part, this Agreement, or any rights, duties, obligations or liabilities under this Agreement, without prior consent of Licensee. Licensee shall not sell, transfer, assign or delegate this Agreement, in whole or in part, or any rights, duties, obligations or liabilities under this Agreement, without the prior written consent of Alvarion. This Agreement shall bind and inure to the benefit of the parties hereto and their permitted successors and assigns.
- Amendment. No addition or modification to this Agreement is valid unless made in writing and signed by both parties.
- No Waiver. No waiver will be implied from any conduct or failure to enforce rights, nor be effective, unless in a writing signed on behalf of the party against whom the waiver is asserted.
- Severability. Any part of this Agreement found to be unenforceable shall be enforced to the maximum extent permitted by law, and the remainder of this Agreement will remain in full force.
- Entire Agreement. This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all prior representations, discussions and agreements (both written and oral) regarding such subject matter.
- Notices. All notices under this Agreement shall be deemed effective immediately upon delivery if delivered personally, one business day after delivery if sent by facsimile with a confirmation to be sent by overnight courier, one business day after sending via a registered overnight carrier and three days after posting if mailed by registered, certified mail.
- Injunctive Relief. Licensee agrees and acknowledges that any breach or threatened breach of this Agreement may cause irreparable injury to Alvarion, for which monetary damages would be inadequate compensation, entitling Alvarion to obtain injunctive relief, in addition to all other remedies that may be available, in law, at equity or otherwise.
- Termination. This Agreement, including without limitation the license rights granted hereunder, shall terminate immediately with or without notice from Alvarion if: (a) Licensee fails to comply with any of the provisions of this Agreement; or (b) Licensee becomes the subject of a voluntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 30 days of filing. Upon termination of this Agreement for any reason, Licensee shall, at Alvarion’s option: (i) destroy or return all copies of the Software and the Documentation; and (ii) if the Software is embedded in the Product, return the Product to Alvarion at Licensee’s sole cost and expense. Alvarion and Licensee agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.