SOFTWARE: NI Measurement Hardware Driver Development Kit (MHDDK)
NOTICE: THIS IS A CONTRACT. DO NOT DOWNLOAD, ACCESS OR USE THE SOFTWARE IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT. BEFORE YOU DOWNLOAD THE SOFTWARE, COMPLETE THE INSTALLATION PROCESS, AND/OR USE THE SOFTWARE, CAREFULLY READ THIS AGREEMENT. BY DOWNLOADING THE SOFTWARE, CLICKING ANY APPLICABLE BUTTON TO COMPLETE THE INSTALLATION PROCESS, AND/OR USING THE SOFTWARE, YOU CONSENT TO THE TERMS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, CLICK THE APPROPRIATE BUTTON TO CANCEL THE INSTALLATION PROCESS, AND DO NOT INSTALL OR USE THE SOFTWARE.
1. BACKGROUND AND DEFINITIONS
A. NI and if applicable, its licensors, own the Software. Licensee desires to utilize the Software solely for the purpose of developing and maintaining device drivers for hardware (each a “Licensee Driver”) (the "Authorized Purpose") and to utilize the Register Bit Maps for the purpose permitted in Section 2 A. (3) below. NI is willing to grant to Licensee, and Licensee is willing to obtain from NI, the licenses granted in Section 2. A. below, subject to the terms and conditions of this Agreement.
B. As used in this Agreement, the following terms have the following meanings:
“Binary Form” means the machine readable binary object code form of software (“Binary Form”).
"Documentation" means the documentation accompanying the Software as provided by NI.
“Excluded License” means a license that requires, or purports to require, as a condition of use, modification, or distribution, that (i) the code that is or could become subject to the license, be disclosed or distributed in source code form, or (ii) others have the right to modify or create derivative works of the code that is or could become subject to the license.
“Licensee” means you, the individual using the Software, as well as your employer, if you are using the Software within the scope of your employment. If you are using the Software within the scope of your employment, then you represent that you are authorized to bind your employer to this Agreement.
“NI” means National Instruments Corporation, a Delaware corporation.
“Register Bit Maps” means the text data files provided by NI along with the Software which have file names ending with the extension “.rbm”.
"Register Bit File" means means a software program which programs registers in a hardware device, which is created using the Register Bit Maps as expressly permitted in this Agreement, and which does not include any comments from the Register Bit Map (which begin with either the '@' or '#' characters, or characters other than the '@' or '#' characters which are identified by a legend in the Register Bit Map as being comment identifying characters, and continue until the end of the line).
“Software” means the computer software and other code provided with this Agreement (including any and all modifications, updates, upgrades, and new versions that may be provided by NI that Licensee is authorized to use in accordance with Section 2 below (if any are so provided)), and all copies thereof, except that the Register Bit Maps are not included within the meaning of the term “Software”. "Documentation" is not included within the meaning of the term "Software".
2. LICENSE GRANT; INTELLECTUAL PROPERTY RIGHTS.
A. Grant By NI. NI hereby grants to Licensee and Licensee hereby accepts, subject to the limitations and restrictions of this Agreement,
(1) a limited, non-transferable, non-exclusive, revocable license, for the term of this Agreement only, without the right to grant sublicenses, to internally (a) use the Software and Documentation, and (b) modify the Software (but not the Documentation); all solely for the Authorized Purpose;
(2) a limited, non-transferable, non-exclusive, revocable license, for the term of this Agreement only, without the right to grant sublicenses, to distribute, pursuant to this Agreement as provided below, copies of the Software as modified by Licensee under this Agreement and incorporated into a Licensee Driver, in Binary Form only; and
(3) a limited, non-transferable, non-exclusive, revocable license, for the term of this
Agreement only, without the right to grant sublicenses, to internally use the Register Bit Maps to create Register Bit Files for use and distribution with Licensee Drivers.
B. Additional Limitations and Restrictions. The licenses granted in this Section 2 are subject the following additional limitations and restrictions, each of with which Licensee agrees to comply:
(1). General. Licensee agrees not to (i) sublicense (except to the extent that any Software is sublicensed pursuant to distributions of the Licensee Driver as expressly permitted in this Agreement), lease, lend, or rent the Software or Documentation; (ii) (other than as expressly permitted under this Agreement) distribute in whole or part, modify, or create derivative works of, the Software; (iii) distribute in whole or part, modify, or create derivative works of the Documentation or Register Bit Maps; (iv) take any action that results in any of the Software being subject to an Excluded License; or (v) directly or indirectly, export, re-export, download, transmit, or ship the Software, Documentation or Register Bit Maps in violation of Section 5. F.
(2). Distributions. Licensee agrees to enter into a legally enforceable license agreement with its direct and indirect distributees of those Licensee Drivers which incorporate any Software (collectively “Distributees”), sufficient to protect NI and NI’s rights in the Software substantially in accordance with this Agreement, with (1) a provision that NI is not responsible for the Licensee Driver or for any maintenance or support of the Licensee Driver or any Software incorporated therein, and that the Distributees should contact Licensee, not NI, regarding any support or maintenance requests, (2) a provision that NI (which may be identified as a licensor of Licensee rather than by name) is an intended third party beneficiary of the performance of and compliance with Distributee’s obligations under such agreement as they relate to Software, (3) disclaimers of warranties, limitations of liability, and warnings set forth in Sections 3 and 4 (which may identify NI as a licensor of Licensee rather than by name), and (4) restrictions against (i) reverse engineering, decompiling, or disassembling the Software (except to the extent such foregoing restriction is expressly prohibited by applicable law); (ii) sublicensing, leasing, lending, or renting the Software; (iii) (other than as expressly permitted under this Agreement) distributing in whole or part, modifying, or creating derivative works of the Software; (iv) taking any action that results in any of the Software being subject to an Excluded License; and (v) directly or indirectly exporting, reexporting, downloading, transmitting, or shipping the Software in violation of Section 5. F. For avoidance of doubt, a Licensee Driver created by Licensee’s using the Software source code merely by referring to the Software source code to learn the information contained in, and ideas used by, the Software, but which does not incorporate any Software, is not a Licensee Driver which incorporates any Software.
(3). Copies. In no case shall Licensee make more copies of the source code of the Software than are reasonably necessary to permit Licensee to use the Software for the Authorized Purpose, or make more copies of the Documentation or Register Bit Maps than are reasonably necessary to permit Licensee exercise its licenses under Section 2. A. (1) and 2. A. (3) respectively. All copies of the Software, Documentation and Register Bit Maps shall contain all proprietary notices and markings of NI as contained in the original.
C. Reservation of Rights. Except for the licenses expressly granted in Section 2. A., no license is granted by NI, expressly, or by implication, estoppel or otherwise. No license is granted by NI under any patent or trademark, expressly, or by implication, estoppel, or otherwise. NI specifically reserves all rights and licenses not expressly granted to Licensee pursuant to this Agreement.
D. Technical Assistance. The Software, Documentation and Register Bit Maps are provided "AS IS" and without maintenance or support by NI. Licensee acknowledges and agrees that Licensee is solely responsible for the maintenance and support of the Licensee Driver and any Software incorporated therein.
E. Intellectual Property and Proprietary Rights. Upon NI's request, Licensee shall provide NI with a copy of the Software (in both object code and source code form) as modified or revised by or at the direction of Licensee from time to time (the "Revised Software"). Licensee acknowledges and agrees that (i) title and all interests and rights of ownership in and to the Software (including the source code thereof), Documentation and Register Bit Maps, and all copies, in any form, of all or any part thereof, and all intellectual property rights with respect thereto, are and remain with, and shall be the sole and exclusive property of, NI; (ii) neither Licensee nor any other person or entity shall acquire any interest (except for Licensee's use rights as specifically set forth in this Agreement), title, or rights of ownership in any of the Software, Documentation, or Register Bit Maps; and (iii) notwithstanding anything in this Agreement to the contrary, in no event is NI prevented or otherwise limited from modifying the Software or developing other software with the same or similar functionality as the Revised Software or a Licensee Driver. Further, Licensee grants to NI (under all intellectual property rights of Licensee) the fully-paid, non-exclusive, irrevocable, perpetual, worldwide right and license to copy, modify, create derivative works of, distribute (internally and to third parties), import, make, sell, offer to sell and use in any manner the Revised Software; with the right to grant sublicenses of each of such rights and licenses.
3. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
A. Disclaimer of Warranties. NI PROVIDES THE SOFTWARE, DOCUMENTATION AND REGISTER BIT MAPS, AND GRANTS THE LICENSE RIGHTS IN AND TO THE SOFTWARE, DOCUMENTATION AND REGISTER BIT MAPS AS PROVIDED FOR IN SECTION 2 ABOVE "AS IS, WITH ALL FAULTS" AND NI DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SOFTWARE, ANY MODIFICATIONS THERETO, DOCUMENTATION, REGISTER BIT MAPS, AND ANY TECHNICAL ASSISTANCE PROVIDED BY NI (IF ANY), INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE; WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE; AND ANY AND ALL WARRANTIES OF NON-INFRINGEMENT AND TITLE.
B. Limitation of Liability. NI SHALL NOT BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND AS A RESULT OF ENTERING INTO THIS AGREEMENT OR ANY USE OF THE SOFTWARE, DOCUMENTATION OR REGISTER BIT MAPS. IN NO EVENT, HOWEVER, REGARDLESS OF THE BASIS FOR THE DAMAGES OR LIABILITY, SHALL THE TOTAL LIABILITY TO NI UNDER THIS AGREEMENT EXCEED THE AGGREGATE SUM OF ONE HUNDRED U.S. DOLLARS (US$100.00). THE FOREGOING LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF NI HAS BEEN ADVISED OF THE POSSIBILITY OF POTENTIAL CLAIMS, LOSSES, OR DAMAGES, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OTHER REMEDIES POSSESSED BY LICENSEE OR THIRD PARTIES. Licensee and NI each acknowledge and agree that the limitation of liability provisions of this Section 3. B. reflect an informed, voluntary allocation between them of all risk associated with Licensee's use of the source code (and resulting object code) of the Software, Documentation and Register Bit Maps, as permitted under this Agreement in light of the fact and amount of any license fees charged by NI.
C. Indemnification by Licensee. Licensee shall, at its sole expense, defend, indemnify, and hold NI harmless from and against all loss, liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from any claim based on any Licensee Driver, Licensee's modifications to or use of the Software (including claims that any modification infringes the patents, copyrights, trade secrets, mask rights, moral rights or similar rights of any third party), Documentation or Register Bit Maps, any Register Bit Fiiles created by Licensee through use of the Register Bit Maps, or any breach by Licensee of this Agreement.
4. WARNING. (1) NI PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN. (2) IN ANY APPLICATION, INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED "SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM NI'S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE NI PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY NI, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF NI PRODUCTS WHENEVER NI PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
A. U.S. Government Rights. The Software, Documentation and Register Bit Maps are "commercial items" 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 Software, Documentation and Register Bit Maps are 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 or duplicate the Software, Documentation or Register Bit Maps in any way not expressly permitted by this Agreement. Nothing in this Agreement requires NI to produce or furnish technical data for or to Licensee.
B. Compliance. Licensee agrees to make all applicable records available for review by NI during Licensee's normal business hours so as to permit NI (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 NI or NI's authorized representative, Licensee will promptly document and certify in writing to NI that Licensee and its employees' use of the Software complies with the terms and conditions of this Agreement.
C. Termination. This Agreement shall automatically terminate upon failure by Licensee to comply with its terms, in which event the licenses granted to Licensee under this Agreement shall immediately terminate and Licensee must destroy all copies of the Software, Documentation and Register Bit Maps. The following provisions shall survive any termination of this Agreement: Sections 2. C., 2. E., 3, 4 and 5.
D. Assignment; Successors. This Agreement binds and inures to the benefit of the parties and their permitted successors and assigns. NI may assign or delegate this Agreement. Licensee acknowledges and agrees that this Agreement is personal to Licensee and Licensee may not assign or delegate its rights or obligations under this Agreement without the prior written consent of NI (which may be given or withheld at NI’s sole discretion). Any assignment or delegation in contravention of this section shall be void.
E. Governing Law. This Agreement is governed by the laws of the State of Texas, U.S.A., exclusive of any provisions of the United Nations Convention on the International Sale of Goods, and without regard to principles of conflicts of law and (ii) the non-exclusive venue for all actions under this Agreement shall be in the courts located in Travis County, Texas, U.S.A. and the parties agree to submit to the jurisdiction of such courts. Licensee irrevocably: (a) submits to the personal jurisdiction of the state and federal courts sitting in Travis County, Texas with respect to any and all actions and proceedings involving any dispute arising out of or in connection with this Agreement or its subject matter, and (b) agrees and stipulates that each of such courts is a proper forum, and waives any and all objections and rights to transfer or dismiss with respect to the conduct of any such action or proceeding in any such court based on forum non conveniens, improper venue or lack of personal jurisdiction.
F. Export. The Software is subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.), 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 Software, Documentation or Register Bit Maps 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. NI reserves the right not to ship or permit downloading of the Software ordered if, at any time, NI believes that such shipment or downloading of such Software, may violate U.S. and/or other applicable export control laws. If Licensee is downloading the Software, Licensee hereby represents and warrants to NI as follows: (i) Licensee is not located in or under the control of any country the laws and regulations of which prohibit importation of the Software; and (ii) Licensee is not 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 Software. For text of the relevant legal materials, see http://www.ni.com/legal/export-compliance.htm.
G. Complete Agreement; Attorney Fees; Nonwaiver; Severability. This Agreement constitutes the complete agreement between Licensee and NI regarding its subject matter and it supersedes any oral or written proposals, prior agreements, purchase orders or any other communication between Licensee and NI relating to the subject matter of this Agreement. The headings used in this Agreement are for convenience only and shall not enter into the interpretation hereof. If any action is brought by either party to this Agreement against the other regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorney fees and court costs. If any provision of this Agreement is held invalid, the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect. No delay or omission by NI to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by NI of any breach of any provision hereof shall not be construed to be a waiver of any succeeding breach of that provision or of any breach of any other provision. If any provision of this Agreement is held invalid, the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect.
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