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Melexis Firmware License Agreement By using the Melexis Firmware en Tools, the Licensee
unconditionally agrees to the terms and conditions of this Firmware License
Agreement, as set forth below: 1. Definitions.
For the purpose of this Agreement the following definitions are used: Firmware: a Melexis proprietary software
program incorporated in an integrated circuit developed by Melexis providing
the necessary instructions for how the integrated circuit may communicate with
application software or other hardware; Product: a product sold or marketed by
Customer to its customers containing a Melexis integrated circuit, Firmware along
with, as the case may be, the customer's application software and/or other equipment. Tool: a Melexis or third party proprietary
software development tools that together with the Firmware allows a licensee to
develop his application specific product as defined hereunder. 2. Licensed
Software. As used in this
Agreement, the term "Licensed Software" means the most current version,
as of the Effective Date, of the Melexis proprietary Firmware and Tools. Upon execution of this Agreement, Melexis
will deliver to Licensee by e-mail or by handing over a CD-rom containing such
most current version of the Licensed Software for use by Licensee in accordance
with and subject to the terms and conditions of this Agreement. 3. Grant
of License. Effective as of the
Effective Date, Melexis grants to Licensee, and Licensee accepts from Melexis,
at no charge to Licensee, a perpetual, royalty-free, non-exclusive license to
use, modify, and copy the Licensed Software in accordance with and subject to
the following restrictions: (a) The Licensed Software will be used by
Licensee solely to develop his application specific Product that incorporates
the Firmware (the "Restricted Use") and
of any direct or indirect majority-owned subsidiary of Licensee so long as such
entity remains a direct or indirect majority-owned subsidiary of Licensee . (b) The Licensed Software will be used by
Licensee solely on equipment and at facilities owned or leased by Licensee or
under the control of Licensee and will be operated solely by employees of
Licensee or subcontractors under its control. (c) Licensee will not, and will not permit
its employees or agents to, copy or to reproduce the Licensed Software, or any
of its components, except as may be necessary for the Restricted Use in
accordance with the terms of Section 3 (a) of this Agreement. (d) Licensee will maintain the Licensed
Software in strictest confidence, will provide access to the Licensed Software
solely to those Licensee employees requiring such access for the Restricted Use,
and will instruct those Licensee employees that the Licensed Software, and all its
components are proprietary to and part of the trade secrets of Melexis. (e) Licensee will not, and will not permit
its employees or agents to, sell, assign, lease, license, sublicense, or
otherwise transfer or provide the Licensed Software, or any of its components to any other party for any purpose. (f) Licensee accepts full responsibility
for the selection of the Licensed Software to achieve Licensee's desired
results, the installation and operation of the Licensed Software and the
results obtained from the Licensed Software. (g) Licensee will include on all copies of
the Licensed Software which it may have in its possession, or create, whatever
type of designation Melexis may reasonably require from time to time to
indicate that such material is the proprietary property of Melexis. (h) In the event that any portion of the Licensed
Software should come into the possession of unauthorized third parties as a
result of a breach by Licensee of this Agreement, Licensee will, at its
expense, use all reasonable efforts to retrieve such material and, if
unsuccessful in such efforts, will reimburse Melexis for all reasonable
expenses incurred by Melexis in attempting to retrieve such materials. (i) Licensee acknowledges and agrees that
the Licensed Software, and all components thereof, are the valuable property
and trade secrets of Melexis, that any violation by Licensee of the provisions
of this Section 3 would cause Melexis irreparable injury for which Melexis
would have no adequate remedy at law, and that, in addition to any other
remedies which Melexis may have, Melexis will be entitled to preliminary and
other injunctive relief against any such violation. 4. Title Warranty. Melexis represents and warrants that it has
such right, title, and interest in or to the Licensed Software as Melexis may require
to grant the license to the Licensed Software set forth herein. Licensee's exclusive remedy with respect to
any breach of such warranty will be subject to the provisions of Section 6
hereof. 5. Pass-through of Third Party
Warranties; Licensed Software Provided "AS IS". With respect to the Licensed Software and any
other items which Melexis may from time to time provide directly or
incidentally under this Agreement, Melexis will pass through to Licensee any
manufacturers' or licensors' warranties which Melexis is able to pass through
for Licensee's benefit. Otherwise, the Licensed
Software and such other items are provided on an "AS IS" basis. 6. Warranty Disclaimer. Melexis makes no representations or
warranties, express or implied, regarding any matter, including no
representations or warranties regarding the merchantability, suitability,
originality, fitness for a particular use or purpose, or results to be derived
from the use of any product or service from the Licensed Software or from other
items provided under this Agreement. Further, Melexis expressly does not
warrant that the Licensed Software will conform to any particular
specifications, contain any specific functions, meet any of Licensee's
requirements or be free from defects. 7. Taxes. Licensee will pay directly, or reimburse
Melexis for, all taxes, assessments, duties, permits and fees, however
designated, which are levied upon this Agreement or the Licensed Software, or
its use, excluding franchise taxes and taxes based on the net income of
Melexis. 8. Termination. This Agreement may be terminated as follows: (a) If either party defaults in the
performance of any of its obligations hereunder and if such default continues
for more than ten days after written notice specifying the default is given to
the defaulting party, then the other party may, by giving the defaulting party
written notice thereof, terminate this Agreement as of a date specified in such
notice of termination. (b) If Licensee ceases to carry on its
business, a receiver or similar officer is appointed for Licensee, Licensee
makes an assignment for the benefit of, or a composition with, its creditors,
or another arrangement of similar import, or if proceedings under any
bankruptcy or insolvency law are commenced by or against Licensee, then Melexis
may, by giving Licensee written notice thereof, terminate this Agreement as of
a date specified in such notice of termination. Upon termination of this Agreement
for any reason, then, in addition to any other rights which either party may
have, Licensee will promptly return to Melexis all copies of the Licensed
Software, and all components thereof, in Licensee's possession or under
Licensee's control and will completely erase the Licensed Software, and all
components thereof, from Licensee's computer systems. Upon Melexis' request, Licensee will execute
and deliver to Melexis a written certification that Licensee has complied with
the provisions of this Section 8 and no longer retains any material relating to
the Licensed Software or any component thereof. 9. Infringement Indemnity. Melexis will, at its own expense, defend any
action brought against Licensee to the extent such action is based on a claim
that the Licensed Software, used within the scope of the license granted
herein, infringes a copyright perfected under US or European statute, infringes
a patent granted under US or European law, or constitutes an unlawful
disclosure, use or misappropriation of another party's trade secret or similar
property right. Melexis will bear the
expense of such defense and pay any damages and attorneys fees finally awarded
by a court of competent jurisdiction which are attributable to such claim,
provided that Licensee notifies Melexis promptly in writing of the claim and
that Licensee allows Melexis to fully direct the defense or settlement of such
claim. Melexis will not be responsible
for any settlement or compromise made without its consent. Should the Licensed Software, or any
component thereof, become, or in Melexis' reasonable opinion be likely to
become, the subject of a claim subject to the provisions of this Section 9,
then Melexis may, by written notice to Licensee, terminate this Agreement. This Section 9 states Melexis' entire
obligation to Licensee regarding infringement. 10. Licensee Indemnity. Licensee will indemnify, defend and hold
harmless Melexis from any liability, loss, claim or damage to persons or
property arising out of Licensee's possession, operation or use of the Licensed
Software or arising out of the fault or negligence of Licensee, its employees
or agents, and will indemnify Melexis from any cost or expense incurred by
Melexis with respect to any such claim. 11. Limitation of Liability. Except as provided in Section 9 hereof,
Melexis will have no liability to Licensee for any claims relating to this
Agreement, the Licensed Software, or Melexis' performance hereunder, whether in
contract or in tort, including negligence, and Licensee's exclusive remedy with
respect to any such claim will be to terminate this Agreement as provided in
Section 6 hereof. Without limiting the
foregoing, Melexis will have no liability for any cause of action against
Melexis which accrued more than two years prior to the filing of a suit
alleging such cause of action. 12. Miscellaneous. (a) This Agreement will be binding on the
parties hereto and their successors and assigns, but Licensee may not assign
this Agreement without the prior written consent of Melexis, which consent will
not be unreasonably withheld. (b) Wherever under this Agreement one party
is required to give notice to the other, such notice will be deemed given if
actually delivered or if mailed by (c) If any provision of this Agreement is
declared or found to be illegal, unenforceable or void, then both parties will
be relieved of all obligations arising under such provision, but if the
remainder of this Agreement is not affected by such declaration or finding,
then each provision not so affected will be enforced to the extent permitted by
law. (d) No delay or omission by either party
hereto to exercise any right or power accruing upon any noncompliance or
default by the other party with respect to any of the terms of this Agreement
will impair any such right or power or be construed to be a waiver
thereof. A waiver by either of the
parties hereto of any of the covenants, conditions, or agreements to be
performed by the other will not be construed to be a waiver of any succeeding
breach thereof or of any other covenant, condition or agreement herein
contained. (e) All remedies provided for in this
Agreement will be cumulative and in addition to and not in lieu of any other remedies
available to either party at law, in equity or otherwise. (f) This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. There are no understandings or agreements
relative hereto which are not fully expressed herein and no change, waiver or
discharge hereof will be valid unless in writing and executed by the party
against which such change, waiver or discharge is sought to be enforced. (g) This Agreement will be governed by and
construed in accordance with the laws of Rozendaalstraat
12 B-8900 Ieper Belgium BTW BE
0435.604.729 RPR Ieper |