License

InAccel PRODUCT LICENSE AGREEMENT


InAccel LLC, a Delaware corporation, ("InAccel") licenses the Product (defined below) under the terms and conditions of this License Agreement ("Agreement"). This Agreement is a legal contract between you (if accepting in your capacity as an individual) or the legal entity you represent if you are using the product on its behalf (e.g., your employer) ("Licensee") and InAccel.

If both Licensee and InAccel have signed a license agreement to obtain a license to use the Product, then that signed license agreement supersedes this Agreement and will apply and govern Licensee's use of the Product. The terms or conditions of any purchase order or other document issued by Licensee in connection with this Agreement shall be deemed invalid and have no force or effect to add to or modify this Agreement.

1. Definitions.

Academic Institution means a degree-granting educational institution.

Designated Equipment means the specific computing device on which the Product may be installed and used.

Designated Site means the specific Licensee location or facility specified as the "designated site" on the Proof of License or, if the Proof of License does not specify a designated site, any facility owned or leased by Licensee that is within a five-mile radius of the "Ship To" address specified on the Proof of License. Also, Designated Site means any facility owned or leased by Licensee and in which Licensee regularly conducts engineering development, subject in every case to Licensee's compliance with all applicable export controls laws and regulations.

Alternatively, in the case of a downloaded evaluation or personal license, the Designated Site is the address provided by Licensee when registering for the license on InAccel's website.

Documentation means the user manual, reference manuals and other end user materials, in printed and electronic form, supplied by InAccel for use with the Product.

Effective Date means the date on which Licensee accepts this Agreement by clicking on the "I Agree" button.

FPGA Device means an integrated circuit device which can be user-programmed, typically by uploading an FPGA configuration file.

Proof of License means the collective set of applicable documents authorized by InAccel specifying the type of license granted to Licensee under this Agreement and the other applicable terms, including the duration of the license. The Proof of License may be in the form of Licensee's purchase order that is accepted by InAccel in writing, InAccel's invoice or other InAccel documents that describe or specify the type of license granted to Licensee, including a key code or license activation file.

Product means the InAccel product provided with this Agreement, comprising one more of the following InAccel software and IP cores (as this term is understood in the semiconductor industry): Soft-Analog IP core, Network Protocol Acceleration Platform, Zynq SATA Storage Extension, USB EHCI Host Controller, and any third party products, third party software or third party IP cores included in any of the foregoing (other than those which are provided subject to separate license terms as described below), in each case in machine-readable object code form, in machine readable netlist form, in machine readable source code form, in FPGA bitstream form, and updates, upgrades, new versions and new releases provided by InAccel, if any. InAccel provides certain third party software subject to separate license terms either presented at the time of installation or otherwise provided with the Product ("Third Party Software"), such Third Party Software is not included in the definition of the term "Product". The Product expressly excludes all materials that are subject to any of the following licenses: GNU General Public License, GNU Library General Public License, GNU Lesser Public License.

Student means an individual enrolled (or taking continuing education classes) at an Academic Institution.

Designated Number of Instantiations, as provided on the Proof of License, means the maximum allowed number of different FPGA configuration files incorporating elements of the Product.

Designated Number of Units, as provided on the Proof of License, means the maximum allowed number different FPGA configuration files incorporating elements of the Product times the number of printed circuit boards comprising FPGA Devices which are configured with said FPGA bitstream.

Project means a Licensee project, at it is identified on the Proof of License, that uses the Product to create (a) a single FPGA bitstream (using one or more instances of the Product) for use to program an FPGA Device on one or more printed circuit boards; or (b) one or more FPGA bitstreams (using one or more instances of the Product) for use to program one or more FPGA Devices on a single printed circuit board. Derivative or follow-on projects, with the sole exception of bug fixes to remedy errors in the original Project, are not part of the Project as defined herein.

Error means a repeatable failure of the Product to substantially conform to its specifications as published by InAccel.

License Term means the period of time commencing on the date of Licensee's selecting the applicable button to complete the installation process and continuing for the period of time specified in the Proof of License; unless this Agreement is terminated earlier by InAccel or Licensee as provided herein, in which case such period is deemed to have ended on the effective date of such termination. If no period of time is specified in the Proof of License, the period is deemed to be 30 days for an Evaluation License and one year for all other licenses.

2. Licenses and Restrictions.

2.1. License Type.

The Proof of License (or, in the case of academic licenses, the applicable quote or other offer documents) specifies the type of license granted to Licensee under this Agreement. The types of licenses are Commercial, Academic, Evaluation and Personal. If the Proof of License fails to specify the type of license granted to Licensee, and if the applicable quote or other offer documents fail to specify an academic license type granted to Licensee, then the license type is Evaluation.

2.1.1. Commercial License.

Subject to the terms and conditions of this Agreement, InAccel hereby grants Licensee, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable, limited license to (i) reproduce and install the Product on computers at the Designated Site only for the sole purpose of creating designs that are programmed into an FPGA Device, (ii) make an archival copy of the Product solely for emergency back-up purposes, and (iii) permit Users to use the Product only for Licensee's internal business purposes, solely at the Designated Site or via a secure virtual private network or application sharing utility at the personal residences of Licensee's personnel (subject to the limitations set forth below). Licensee may allow Licensee's contractors to use the Product solely in accordance with this Agreement for Licensee's internal business purposes and for the sole benefit of Licensee, on conditions that Licensee's contractors are not InAccel competitors. Users whose permanent work location is the Designated Site may access and utilize the Product from their personal residences via a secure virtual private network or application sharing utility (such as, and without limitation, Cisco VPN Client, VNC, Windows Remote Desktop or WebEx). InAccel hereby further grants Licensee, solely during the License Term, a non-exclusive, non-transferable, limited license to reproduce and distribute the Product, solely in binary form for use to program an FPGA Device that operates in Licensee's system-level hardware products, on condition that Licensee complies with the Designated Number of Instantiations and the Designated Number of Units. Licensee may use the Product only in one (1) Project. Licensee shall restrict access to the Product to only those Licensee employees, and contractors, assigned to the Project.

2.1.2. Academic License.

If the license is an academic license, then this paragraph applies: Subject to the terms and conditions of this Agreement, InAccel hereby grants Licensee, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable, limited license to use the Product solely for academic research, teaching, and educational purposes in Licensee's department, college, or on a specific university campus, in each case, of an Academic Institution, depending on the option selected in the applicable purchase order submitted to InAccel. Licensee may install the Product on Licensee's Designated Equipment specified by InAccel in writing in the applicable quote or other offer documents. If any of the Designated Equipment items on which the Product may be installed is a laptop, notebook or similar portable computer, Licensee may use the Product on the portable computer while temporarily away from Licensee's institution's classroom, lab, or other facilities for the same purpose permitted by this Agreement as you normally use the Product on the portable computer while in such facilities. Licensee may internally reproduce and use the Product for the sole purpose of creating designs that are programmed into an FPGA Device, on condition that these are not distributed. Licensee must purchase maintenance for the Product to maintain the license.

2.1.3. Evaluation License.

If the license is an evaluation license, then this paragraph applies: Subject to the terms and conditions of this Agreement, InAccel hereby grants Licensee, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable, limited license to (i) reproduce and install the Product on the Designated Equipment solely at the Designated Site only for use and access by a single user at a time, (ii) make an archival copy of the Product solely for emergency back-up purposes and (iii) permit the single user to use the Product, only internally and solely to evaluate the Product for determining whether to license it from InAccel on a commercial or academic license basis. There is no right to use the Product for any work to be used in commercial or industrial production. Licensee may use the Product only during the License Term or for the duration of the key code, whichever is shorter. Use of the Product without an authorized evaluation key is to be considered as use for commercial purpose regardless of duration of use.? PRODUCT LICENSED UNDER AN EVALUATION LICENSE MAY NOT BE FULLY FUNCTIONAL, AND LICENSEE ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCT. InAccel WILL NOT UPDATE THE PRODUCT, NOR WILL InAccel SUPPORT THE PRODUCT.

2.1.4. Personal License.

If the license is a personal license, Licensee must be an individual (i.e., a natural person), and this paragraph applies: Subject to the terms and conditions of this Agreement, InAccel hereby grants Licensee, solely during the License Term, a non-exclusive, non-sublicensable, non-transferable, limited license to (i) reproduce and install the Product on the Designated Equipment solely at the Designated Site for use and access only by Licensee, (ii) make an archival copy of the Product solely for emergency back-up purposes and (iii) use the Product for Licensee's own purposes. There is no right for anyone other than Licensee to access or use the Product for any purposes whatsoever.

2.2. Documentation License.

Subject to the terms and conditions of this Agreement, InAccel hereby grants Licensee, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, limited license to use and reproduce a limited number of copies of the Documentation solely in conjunction with Licensee's licensed use of the Product. Licensee shall not modify or create any derivative works of the Documentation. Licensee shall not distribute the Documentation.

2.3. Additional Restrictions.

In addition to any restrictions stated elsewhere in this Agreement, the following restrictions apply:

2.3.1. Use and Users.

The Product may not be used for any purpose other than its ordinary intended purpose for use in Licensee's design of its circuits, components, products, subsystems and systems as appropriate for the particular Product item. All users must be (i) for a commercial or evaluation license, Licensee's personnel whose permanent work location is the Designated Site, or, in the case of those license types which permit use by contractors, contractors with respect to whom the requirements of Section 2.3.2. below are met, (ii) for an academic license, faculty of and students who are enrolled at Licensee's educational institution or working at Licensee's research institution as a part of their curriculum at an educational institution, as specified in the applicable academic license type.

2.3.2. Contractors.

In addition to any other requirements set forth in the applicable license type for which use by contractors is permitted, contractors must, before accessing the Product, agree in writing that (1) the Product shall be used solely in accordance with this Agreement and solely for Licensee's benefit, and (2) the contractor shall be liable to InAccel for any breach by contractor of this Agreement.? Licensee hereby agrees and acknowledges that Licensee will be liable for any and all actions or omissions of the contractor with respect to the use of the Product, as if such actions or omissions were Licensee's own.

2.3.3. Other Restrictions.

Licensee shall not do any of the following: (i) permit any parent, subsidiary, affiliated entity or other third party to use the Product, (ii) copy (except as expressly permitted in this Agreement), sublicense, disclose, distribute, lend, rent or lease the Product or Documentation, (ii) use the Product or Documentation for third-party training or commercial or non-commercial time-sharing, (iii) use, separately from the Product, any components, modules or libraries included in the Product or otherwise provided by InAccel, (iv) take any action that results in any of the Product being subject to a license that requires, or purports to require, as a condition of use, modification, or distribution, that (a) the code that is or could become subject to the license, be disclosed or distributed in source code form, or (b) others have the right to modify or create derivative works of the code that is or could become subject to the license, or (v) directly or indirectly, export, re-export, download, transmit, or ship the Product or Documentation in violation of Section 11.3. or otherwise in violation of any applicable laws or regulations, including those of the U.S. or the jurisdiction in which Licensee uses or you are downloading the Product.? All uses of the Product shall be in accordance with the applicable Documentation and not in any manner intended to (or that) circumvents such Documentation or the intent of this Agreement. The use of the Product is intended only for use with content owned by the user, public domain content or properly licensed content. Licensee may require a patent, copyright, or other license from a third party to create, copy, download, record or save content files for use with this Product or to serve or distribute such files to be used with the Product.? Licensee shall only use the Product and Documentation in a manner that complies with all applicable laws in the jurisdictions in which it uses the Product and Documentation, including applicable restrictions concerning copyright and other intellectual property rights. Licensee shall not use the Product in an attempt to, or in conjunction with any device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.

2.4. Proprietary Rights Notices.

Licensee shall not remove, deface or obscure any copyright or other proprietary notices appearing on or within the Product or Documentation. Licensee shall include reproductions of the copyright and other proprietary notices on all copies of the Product and Documentation made by or for Licensee.

2.5. Reverse Engineering; Modifications.

Licensee shall not cause or permit any of the following to occur: (i) the disassembly, decompilation or reverse engineering of the Product or otherwise attempting to gain access to or discover the source code for the Product (or the underlying ideas, algorithms, structure or organization of the Product) except to the extent that such restriction is expressly prohibited by applicable law, or (ii) the modification, adaptation, translation or creation of derivative works based on the Product.

2.6. Key Codes; Deactivation.

For a commercial license, Licensee shall only use the Product using the key code created by InAccel that is provided to Licensee by InAccel. Licensee shall not use the Product in any manner without that key code. InAccel reserves to the right to update or replace the key code periodically or implement an alternative licensing protection mechanism. Licensee shall comply with any alternative licensing protection mechanism that may be subsequently implemented by InAccel. Licensee shall not distribute, make accessible, transmit or provide any key code to any third party or make it available to the public, use any key code other than key code provided to Licensee directly by InAccel, use or attempt to use the key code other than for the Product for which it is provided by InAccel to Licensee, or take any action to circumvent any key code system or alternative licensing protection mechanism. Any action by Licensee (including any employee of Licensee) in contravention of this paragraph is a material breach of this Agreement. THE PRODUCT MAY CONTAIN CODE THAT WILL, AFTER TERMINATION OR EXPIRATION OF THE LICENSE TERM, DEACTIVATE THE PRODUCT AND RENDER THE PRODUCT UNUSABLE. ALTHOUGH THE PRODUCT MAY WARN YOU OF THE TIME-FRAME IN WHICH IT WILL BE DISABLED, YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT MAY BE DEACTIVATED OR RENDERED UNUSABLE WITH OR WITHOUT WARNING.

2.7. Benchmarking; Publication of Benchmark Data.

Licensee shall not publish or disclose the results of any benchmarking of the Product, or use such results for its own competing development activities.

3. Support.

Any Product maintenance services and other Product support services provided by InAccel for the Product are subject to InAccel's then current applicable standard Product support policies.

4. Payment.

4.1. License Fees and Taxes.

Licensee shall pay the license fees set forth in the Proof of License, if any, and all associated taxes.

4.2. Payments.

Except as otherwise set forth herein, all amounts due must be paid within the payment period specified on the Proof of License in the currency specified by InAccel. If none is specified, then the due amounts must be paid within 30 days of invoice or the Effective Date, whichever is sooner.

4.3. Acceptance.

This Section 4.3. only applies to Product obtained under a commercial license. Licensee will have 30 calendar days from receipt of the Product to accept or reject it. Licensee may only reject the Product if it fails to substantially comply with the applicable Documentation. The Product will be deemed accepted by Licensee if Licensee uses the Product on a commercial basis or upon expiration of that 30 day period, whichever occurs first. If Licensee rejects the Product, InAccel will, at InAccel's sole discretion, repair or replace the Product or refund to Licensee the amounts paid by Licensee for the Product. If InAccel refunds the fees paid by Licensee, then this Agreement and Licensee's license to the Product will terminate and the terms of Section 10.3. will apply. THE REMEDY PROVIDED FOR IN THIS SECTION 4.3. IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY AND InAccel'S SOLE OBLIGATION IF LICENSEE REJECTS THE PRODUCT. InAccel WILL NOT HAVE ANY LIABILITY FOR THE COST OF SUBSTITUTE PRODUCT.

5. Protection of Licensed Materials; Feedback; Compliance.

5.1. Ownership.

The Product and Documentation, and all copies of the Product and Documentation, are owned by InAccel or its suppliers or licensors and are protected by applicable copyright laws and international treaty provisions. Licensee hereby acknowledges and agrees that the Product and Documentation (and all copies thereof) are the copyrighted, proprietary and confidential property of InAccel and/or InAccel's licensors. InAccel and its licensors retain all right, title and interest, including intellectual property rights, in and to the Product and Documentation and any corrections, enhancements, or other modifications to the Product. InAccel's licensors are third party beneficiaries of Licensee's compliance with this Agreement to the extent of their respective interests. Licensee acknowledges that the Product is licensed, not sold, and that the license granted under this Agreement provides Licensee only with a limited right to use the Product under the terms and conditions of this Agreement. There are no implied rights. All rights not expressly granted by InAccel to Licensee are hereby reserved by InAccel. Further, and without limiting the foregoing, no license or any right of any kind (whether by express license, implied license, the doctrine of exhaustion, or otherwise) is granted under any InAccel patents (whether identified herein or not) or other intellectual property right of InAccel with respect to any other product(s) of InAccel or of any third party, including the right to use any of these other products. ?

5.2. Feedback.

Licensee agrees that any feedback regarding Licensee's use of the Product, which Licensee discloses to InAccel, including errors or bugs that Licensee might find, and any changes or suggested changes to InAccel's current or future products and services (collectively "Feedback"), shall be received and treated by InAccel on a non-confidential and unrestricted basis, notwithstanding any restrictive or proprietary legends to the contrary accompanying or otherwise associated with the Feedback. Licensee hereby grants to InAccel a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, and modify Feedback for any purpose, including incorporation or implementation of such Feedback into InAccel products or services, and to display, market, sublicense and distribute Feedback as incorporated or embedded in any product or service distributed or offered by InAccel.

5.3. Compliance.

Licensee agrees to make all applicable records available for review by InAccel during Licensee's normal business hours so as to permit InAccel (upon reasonable notice to Licensee) to verify Licensee's compliance with the terms and conditions of this Agreement. Further, if Licensee is a business or other entity, Licensee agrees that upon the request of InAccel or InAccel's authorized representative, Licensee will promptly document and certify in writing to InAccel that Licensee's and Licensee's employees' use of the Product complies with the terms and conditions of this Agreement.

6. Product Updates, Error Reporting, and License Compliance.

You agree that the Product may collect and communicate certain software, hardware, and use information to InAccel's (or its service providers') servers for the purposes of (i) checking for and performing any updates, (ii) documenting application errors (e.g., crashes), (iii) ensuring that you have complied and are complying with the terms and license conditions in this Agreement, including your use of valid Product key codes, and (iv) InAccel's internal product development. This process does not collect or communicate any proprietary application data. InAccel will not provide any information gathered in connection with this process to any third party except (i) as may be required by law or legal process, or (ii) to enforce compliance with this Agreement and the key code requirement described above.

7. Disclaimer.

7.1. Limited Warranty.

Except for Product provided under an evaluation or academic license which Product is provided without warranty, InAccel warrants, for Licensee's benefit alone, that for a period of thirty (30) days from the date the Product is shipped to Licensee (or, if downloaded, from the date the Product is first downloaded by you) (i) the Product will perform substantially in accordance with the applicable Documentation, and (ii) the medium on which the Product is recorded will be free from defects in materials and workmanship under normal use and service ("Limited Warranty"). Any replacement Product will be warranted for the same period. Some states/jurisdictions do not allow limitations on duration of an express or implied warranty, so the above or any other limitation provided herein may not apply to Licensee. In such event, such warranties are limited to the minimum warranty period allowed by applicable law. The Limited Warranty is void if failure of the Product has resulted from accident, abuse, misapplication, third party products (i.e., hardware or Product) used by Licensee which are not intended by InAccel for use with the Product, utilization of an improper hardware or Product key (if applicable), any use of the Product other than as permitted by this Agreement, or unauthorized maintenance of the Product.

7.2. Licensee Remedies.

InAccel's sole obligation (and Licensee's sole remedy) with respect to the foregoing Limited Warranty shall be to, at InAccel's option, return the fees paid by Licensee to InAccel, in which event Licensee must return or destroy all copies of the Product in accordance with InAccel's reasonable instructions, in which case the license granted to Licensee shall terminate without liability on the part of InAccel by reason of such termination, or repair or replace the Product, provided that InAccel receives written notice of applicable defects during the warranty period. Licensee hereby agrees not to bring an action to enforce Licensee's remedies under the foregoing Limited Warranty, or for breach of warranty, more than one (1) year after the accrual of such cause of action.

7.3. No Other Warranties.

EXCEPT AS EXPRESSLY SET FORTH ABOVE, NO WARRANTIES, EITHER EXPRESS OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCT, THIRD PARTY SOFTWARE OR PRODUCT SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THERE ARE NO OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. InAccel? DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT RELATING TO THE PRODUCT, THIRD PARTY SOFTWARE, AND THE PRODUCT SERVICES. InAccel DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCT OR PRODUCT SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT OR PRODUCT SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. InAccel'S LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS TO LICENSEE AND SHALL HAVE NO LIABILITY TO LICENSEE IN CONNECTION WITH THIS AGREEMENT.

8. No Obligation for Third Party Claims.

InAccel has no obligation, responsibility or liability whatsoever to defend, indemnify or hold Licensee harInAccelss from or against any third party claims, suits or actions related to, arising out of or connected with the use of the Product or Licensee's exercise of the licenses granted in this Agreement (including, without limitation, any patent, copyright or other intellectual property infringement claims) or for any damages, losses, liabilities, settlement amounts, costs or expenses related to those third party claims, suits or actions.

9. Limitation of Liability.

9.1. Limitation of Damages.

NEITHER InAccel NOR ITS LICENSORS, SUPPLIERS OR DISTRIBUTORS ARE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, OR ANY DIRECT DAMAGES IN EXCESS OF THE LICENSE FEES PAID BY LICENSEE HEREUNDER,? ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE USE OR INABILITY TO USE THE PRODUCT OR THIRD PARTY SOFTWARE, OR ANY SUPPORT SERVICES RELATING TO THE PRODUCT OR THE THIRD PARTY SOFTWARE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OF InAccel OR OTHERS),? AND EVEN IF InAccel OR ITS LICENSORS, SUPPLIERS OR DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, some of the preceding limitation may not apply to Licensee.

9.2. Allocation of Risk.

The sections on limitation on liability, warranties and disclaimer of warranties allocate the risks in this Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. Moreover, Licensee acknowledges that the amounts payable hereunder are based in part on the limitations of this Section 9, and hereby agrees that these limitations will apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder. The foregoing limitations will apply to the maximum extent permitted by law. ?

9.3. Warning.

LICENSEE ACKNOWLEDGES THAT USE OF THE PRODUCT IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS MAY REQUIRE LICENSES FROM THIRD PARTIES AND LICENSEE ACCEPTS SOLE RESPONSIBILITY FOR OBTAINING SUCH LICENSES.

THE PRODUCT IS NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR FOR USE IN ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, APPLICATIONS RELATED TO THE DEPLOYMENT OF AIRBAGS, OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, "CRITICAL APPLICATIONS"). FURTHERMORE, THE PRODUCT IS NOT DESIGNED OR INTENDED FOR USE IN ANY APPLICATIONS THAT AFFECT CONTROL OF A VEHICLE OR AIRCRAFT, UNLESS THERE IS A FAIL-SAFE OR REDUNDANCY FEATURE (WHICH DOES NOT INCLUDE USE OF THE PRODUCT IN THE FPGA DEVICE TO IMPLEMENT THE REDUNDANCY) AND A WARNING SIGNAL UPON FAILURE TO THE OPERATOR. LICENSEE AGREES, PRIOR TO USING OR DISTRIBUTING ANY SYSTEMS THAT INCORPORATE THE PRODUCT, TO THOROUGHLY TEST THE SAME FOR SAFETY PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF THE PRODUCT IN CRITICAL APPLICATIONS.

THE PRODUCT IS NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH ANY APPLICATION OR SYSTEM (INCLUDING SURGICAL IMPLANTS OR CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS) WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. LICENSEE SHALL DEFEND, INDEMNIFY, AND HOLD InAccel? HARInAccelSS FROM ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, ACTIONS (INCLUDING LAWSUITS, ARBITRATIONS, AND/OR ADMINISTRATIVE ACTIONS) AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF LICENSEE'S USE OF THE PRODUCT OR SERVICES IN CONNECTION WITH ANY SUCH APPLICATION OR SYSTEM, REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OF InAccel OR OTHERS.? LICENSEE ACKNOWLEDGES THAT IT IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF THE PRODUCT AND SERVICES FOR USE IN OR IN CONNECTION WITH A PARTICULAR APPLICATION OR SYSTEM, INCLUDING THE APPROPRIATE DESIGN, PROCESS, AND SAFETY LEVEL OF SUCH APPLICATION OR SYSTEM.

10. Term and Termination.

10.1. Term.

This Agreement begins on the Effective Date and continues until terminated. This Agreement will automatically terminate at the end of the License Term if not previously terminated as provided in this Agreement.

10.2. Termination.

Licensee may terminate this Agreement at any time upon written notice to InAccel. This Agreement will automatically terminate if Licensee materially breaches or defaults in the performance of this Agreement and fails to cure that breach or default within 30 days, regardless of whether notice is given by InAccel or InAccel has knowledge of the breach or default. InAccel may also terminate this Agreement upon written notice to Licensee if Licensee fails to make any payment within 10 days after its due date or Licensee becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition or assignment for the benefit of creditors. Either party may terminate an evaluation license at any time.

10.3. Effect of Termination.

Upon termination or expiration of this Agreement, all licenses will immediately end and Licensee will return or permanently erase/destroy, at InAccel's election and Licensee's expense, the Product, Documentation, license key codes and all copies thereof, and, if requested by InAccel, deliver to InAccel a written certification signed by an officer of Licensee stating that it has complied with its obligations under this section. Nothing contained in this Agreement will limit any other remedies that either party may have under this Agreement, at law or in equity, nor relieve a party of any liability incurred prior to or after termination.

11. Miscellaneous.

11.1. Assignment.

Licensee may not assign any of its rights under this Agreement except with InAccel's prior written consent. InAccel shall not unreasonably withhold its consent to proposed assignment in connection with a merger or acquisition of Licensee or a sale of all or substantially all of Licensee's assets or business to which this Agreement and the Product relates if both (i) maintenance and support obligations with respect to the Product are then in effect, and (ii) the assignee agrees in writing to be bound by, and comply with, this Agreement. All assignments of rights are prohibited under this section, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this section, a change of control is deemed an assignment of rights; and "merger" refers to any merger in which Licensee participates, regardless of whether it is the surviving or disappearing corporation. Licensee may not delegate any performance of this Agreement. Any purported assignment of rights or delegation of performance in violation of this section is void. Subject to the foregoing, this Agreement is binding on the parties and will inure to the benefit of their respective successors and permitted assigns.

11.2. Severability; Waiver.

If any of the provisions of this Agreement is held by a court to be invalid, the remaining provisions of this Agreement remain in full force and the invalid provision will be replaced with an enforceable provision that carries out the Licensee's intentions to the greatest lawful extent. No failure or delay (i) in exercising any right or remedy, or (ii) in requiring the satisfaction of any condition, under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver, once given, is not to be construed as a waiver on any future occasion or against any other person or entity.

11.3. Export Control.

The Product and Documentation are, and Third Party Software provided by InAccel with the Product may be, subject to control under the U.S. government's International Traffic in Arms Regulations (ITAR), or Export Administration Regulations (EAR), or other applicable U.S. export control laws and regulations, and applicable global export control laws and regulations. Licensee agrees that Licensee will not export, re-export or transfer any Product or Third Party Software provided by InAccel with the Product via any means to any prohibited destination, entity or individual without the required export license(s) or authorization(s) from the U.S. Government and/or other applicable export licensing authority. InAccel reserves the right not to ship or permit downloading of the Product ordered if, at any time, InAccel believes that such shipment or downloading of such Product or any Third Party Software provided by InAccel with such Product, may violate U.S. and/or other applicable export control laws. If you are downloading the Product, you hereby represent and warrant to InAccel as follows: (i) Neither you nor Licensee are located in, or under the control of, any country the laws and regulations of which prohibit importation of the Product or any Third Party Software provided by InAccel with the Product; and (ii) neither you nor Licensee are located in, or under the control of, any country to which the laws and regulations of the U.S. and/or other applicable export control laws prohibit exportation of the Product or any such Third Party Software.

11.4. Entire Agreement; Modification.

This Agreement and the Proof of License represent the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings with respect to the subject matter hereof, whether written or oral. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.

11.5. Conflicting Documents.

Any terms or conditions of any Licensee purchase order, Licensee invoice or other Licensee business form that are in addition to or inconsistent with the terms of this Agreement will be deemed stricken from the purchase order, invoice or other business form, notwithstanding any acknowledgement or acceptance of it.

11.6. Governing Law.

The laws of the State of California (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement. All claims of Licensee arising out of this Agreement are subject to the exclusive jurisdiction of, and venue in, the federal and state courts in San Francisco, California, USA. Each party hereby irrevocably consents to the personal and exclusive jurisdiction and venue of these courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded and shall not be applicable to this Agreement.

11.7. U.S. Government Rights.

The Product is a "commercial item" developed exclusively at private expense, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined or used in the applicable U.S. acquisition regulations. If Licensee is an agency, department, or other entity of the United States Government, the Product is licensed hereunder (i) only as a commercial item and (ii) with only those rights as are granted to all other licensees pursuant to the terms and conditions of this Agreement. Licensee agrees not to use, duplicate, or disclose the Product in any way not expressly permitted by this Agreement. Nothing in this Agreement requires InAccel to produce or furnish technical data for or to Licensee.

11.8. Force Majeure.

Except for Licensee's payment obligations, neither party is responsible for any delays or inability to perform this Agreement due to any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, or any other cause beyond the reasonable control of that party.

11.9. Attorneys' Fees.

In any litigation or action concerning this Agreement, the prevailing party is entitled to be awarded all court costs and reasonable attorney's fees incurred, including all costs and fees incurred in enforcing and collecting any judgment.

11.10. Equitable Relief.

Licensee hereby acknowledges, agrees and stipulates that InAccel will suffer substantial and irreparable harm, for which there is no adequate remedy at law, if Licensee breaches this Agreement, and that, in the event of a breach, or threatened breach, of this Agreement by Licensee, InAccel shall be entitled, without waiving any additional rights or remedies available to InAccel at law, in equity, or by statute, to such injunctive or other equitable relief as may be deemed proper by a court of competent jurisdiction. Licensee hereby waives any requirement that a bond be posted in order for InAccel to obtain any such relief.


BEFORE COMPLETING THE INSTALLATION PROCESS, CAREFULLY READ THIS AGREEMENT. BY SELECTING "Accept" TO COMPLETE THE INSTALLATION PROCESS, LICENSEE CONSENTS TO THE TERMS OF THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT. IF LICENSEE DOES NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, SELECT "Decline" TO CANCEL THE INSTALLATION PROCESS, DO NOT INSTALL OR USE THE PRODUCT, AND DELETE AND DESTROY ALL COPIES OF THE PRODUCT.