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IC SpotlightTM Software License Agreement

PURPOSE: MOSYS, INC. IS LICENSING THIS IC SPOTLIGHT SOFTWARE ON AN "AS-IS" BASIS FOR THE SOLE PURPOSE OF ENABLING THE LICENSEE TO CONFIGURE, EVALUATE THE PERFORMANCE OF, AND MEASURE THE SIGNAL QUALITY OF LICENSOR'S DEVICES THAT ARE IN COMMUNICATION WITH LICENSEE'S DEVICES.

IMPORTANT-READ CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE (AS DEFINED BELOW): IF YOU ARE ACCESSING THE SOFTWARE FOR THE BENEFIT OF AN ENTITY (E.G., A CORPORATION, PARTNERSHIP OR COMPANY), THIS AGREEMENT IS BETWEEN SUCH ENTITY ("LICENSEE" OR "YOU") AND MOSYS, INC. ("LICENSOR" OR "MOSYS") (YOU AND LICENSOR REFERRED TO INDIVIDUALLY AS A "PARTY" AND COLLECTIVELY AS THE "PARTIES"). BY INSTALLING, COPYING, ACCESSING, OR OTHERWISE USING THE SOFTWARE, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT UNLESS LICENSEE HAS SIGNED A SEPARATE LICENSE AGREEMENT WITH AN AUTHORIZED REPRESENTATIVE OF LICENSOR PERTAINING TO THE SOFTWARE. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE SOFTWARE IS LICENSED, NOT SOLD, TO LICENSEE UNDER THIS AGREEMENT. THE SOFTWARE IS DEEMED TO BE ACCEPTED ON DELIVERY OR DOWNLOAD AS APPLICABLE. IF LICENSEE DOES NOT ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, LICENSEE MUST NOT INSTALL, COPY, ACCESS OR OTHERWISE USE THE SOFTWARE OR ANY PORTION THEREOF, AND MUST DELETE OR UNINSTALL ALL COPIES OF THE SOFTWARE THAT MAY HAVE BEEN INSTALLED BY OR FOR LICENSEE, INCLUDING BACKUP COPIES.

1. Definitions. The following definitions shall apply to this Agreement:

1.1. "Assert" means to bring an action of any nature before any legal, judicial, arbitration, administrative (including, without limitation, US and foreign patent offices), executive or other type of body or tribunal that has or claims to have authority to adjudicate such action in whole or in part.
1.2. "Contractor" means a person, company or other entity that (i) provides design, testing, or integration services for Licensee or Licensee's customer with respect to the implementation of the Software for use with Licensor Devices and (ii) is subject to a written agreement with restrictions on use of the Software that are similar to and no less restrictive than the terms and conditions contained herein.
1.3. "Licensor Covered Parties" means Licensor and its licensors and its and their affiliates and its and their direct and indirect licensees and its and their resellers, distributors, agents, contractors, OEMs, customers, sub-licensees and assigns.
1.4. "Licensor Device(s)" means integrated circuit devices developed or manufactured by or on behalf of Licensor or Licensor's authorized second source licensee.
1.5. "Software" means MoSys' IC Spotlight Software comprised of one or more executable application files that run on Microsoft Windows as the MoSys IC Spotlight Analyzer, which is used to control, test and analyze Licensor Devices through the sideband port (e.g., SPI, I2C, JTAG or MDIO).

2. License Grant and Restrictions.

2.1. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, limited, non-sublicensable (except as expressly set forth herein), perpetual (unless terminated as expressly set forth herein), royalty-free, worldwide license to use the Software solely for the purposes specified and as described in this Section 2.
2.2. LICENSOR IS LICENSING THE SOFTWARE FOR THE SOLE PURPOSE STATED HEREIN. Consistent with this purpose, Licensee may: (a) use and copy the Software to configure, evaluate performance, and measure signal quality of Licensor's Device; (b) sublicense all of the above rights to Contractors; (c) copy the Software for back-up or archival purposes and in connection with the delivery of Software to Licensee's customers; provided that the license grant under this Agreement is valid only when Licensee's devices are used in conjunction with Licensor Devices.
2.3. Except as expressly permitted in this Agreement, Licensee may not: (i) copy the Software; (ii) modify, alter, create derivative works of, derive the source code of, reverse engineer, decompile or disassemble the Software, except to the extent such restrictions cannot be enforced as a matter of mandatory law; (iii) rent, lease, sublicense, distribute, or directly or indirectly transfer or disclose any portion of the Software to any third party; or (iv) remove, obscure, or deface any intellectual property or confidentiality legends of Licensor.
2.4. Except for the express licenses granted in this Section 2, no other licenses are granted by implication, estoppel, or otherwise, and all rights not expressly granted are reserved by Licensor. As between the Parties, Licensor retains all right, title and interest, including all related intellectual property rights, in and to the Software. Licensor also retains ownership of all copies of the Software made by or for Licensee, and all intellectual property rights therein. Licensee hereby agrees not to Assert against any of the Licensor Covered Parties any and all intellectual property rights, including all worldwide patent, copyright, trade secret and other proprietary rights, that (a) cover or are embodied, in whole or in part, in or by any modification to or derivative work of the Software, or (b) are developed as a result of use or exposure (or both use and exposure) to the Software, including any resulting patent. If Licensee or its affiliates assigns (directly or by operation of law) ownership of any of its patents or other intellectual property rights covered by this paragraph to a third party not bound by this Agreement, then effective immediately prior to the assignment, Licensee hereby grants Licensor and its affiliates a nonexclusive, transferable, sub-licensable license to that intellectual property right. Licensee recognizes that Licensor is or may in the future independently develop for commercial use products that may be complementary to or competitive with Licensee's products. Nothing in this Agreement shall limit Licensor's independent development and marketing of any products or systems. This Agreement shall not prevent Licensor from undertaking discussions with third parties, including competitors of Licensee.

3. Warranties.

3.1. THE SOFTWARE PROVIDED HEREIN IS LICENSED ON AN "AS-IS" BASIS. NO WARRANTIES OR GUARANTEES, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE SOFTWARE AND ALL WARRANTIES ARE DISCLAIMED AND EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WHETHER ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE. LICENSOR MAKES NO WARRANTIES AND THIS AGREEMENT EXPRESSLY DISCLAIMS AND EXCLUDES ALL SUCH WARRANTIES. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND ANY DESIGN OR PRODUCT MADE IN RELIANCE ON THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, NEITHER LICENSOR NOR ITS LICENSORS OR AUTHORIZED DISTRIBUTORS OR REPRESENTATIVES ASSUME LIABILITY FOR ANY COST OF ANY NECESSARY REPAIR OR CORRECTION.
3.2. Licensee warrants that all entities and individuals that install, copy, access, modify or otherwise use the Software as a result of Licensee's installing or receiving the Software shall be subject to and abide by the provisions of this Agreement. Licensee will promptly notify Licensor if Licensee becomes aware of any unauthorized use of the Software or other violation of this Agreement. If You are accessing the Software for the benefit of an entity, You represent and warrant that You are authorized to contractually bind (whether as an employee, contractor or agent) the Licensee.

4. Term and Termination.

4.1. This Agreement shall be effective as of the earlier date of either first use or download of the Software and shall remain in effect unless and until terminated.
4.2. Licensor may terminate this Agreement: (a) if Licensee materially breaches this Agreement and Licensee fails to cure the breach within 30 days following written notice of such breach from Licensor to Licensee; or (b) immediately upon a determination by a court of competent jurisdiction that the Software, in whole or in part, infringes any intellectual property right of any third party. Licensee may terminate this Agreement at any time by written notice to Licensor. No later than five days after termination of this Agreement, Licensee agrees to (i) deliver all Software to Licensor, or (ii) destroy all copies of the Software and all parts thereof, that are in Licensee's custody, possession or control, and upon written request, deliver to Licensor a certificate of compliance with this provision signed by Licensee. Termination of this Agreement automatically terminates all licenses granted under this Agreement. In no event may any portions of the Software be used in development after termination of this Agreement.
4.3. Upon termination of this Agreement, all licenses and rights to use the Software granted under this Agreement shall terminate, and Sections 1 and 4 - 6 shall survive.

5. Limitation of Liability.

5.1. IN NO EVENT WILL LICENSOR, ITS SUPPLIERS, OR ITS OR THEIR OFFICERS, DIRECTORS OR EMPLOYEES BE LIABLE TO LICENSEE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING UNDER THIS AGREEMENT OR RESULTING FROM ANY USE OF THE SOFTWARE BY LICENSEE OR ANY CUSTOMER OR OTHER PERSON GIVEN ACCESS TO THE SOFTWARE BY OR FOR LICENSEE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF LICENSOR OR A LICENSOR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT LICENSOR HAS NO RESPONSIBILITY OR DUTY TO DEFEND, INDEMNIFY, OR HOLD LICENSEE HARMLESS FROM AND AGAINST ANY CLAIMS, SUITS, PROCEEDINGS, DAMAGES, LOSS, COSTS AND EXPENSES BASED ON PATENT OR OTHER INTELLECTUAL PROPERTY CLAIMS.
5.2. LICENSEE ACKNOWLEDGES THAT THE LIMITATION OF LICENSOR'S LIABILITY IS A MATERIAL CONDITION TO LICENSOR'S AGREEMENT TO GRANT A LICENSE UNDER THE TERMS OF THIS AGREEMENT, AND, THEREFORE, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LICENSOR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF UNDER ANY LEGAL THEORY (WHETHER IN TORT, CONTRACT OR OTHERWISE), INCLUDING ANY LIABILITY FOR ANY LOSS OR DAMAGES DIRECTLY OR INDIRECTLY SUFFERED BY LICENSEE RELATING TO THE SOFTWARE, EXCEED THE LESSER OF (A) THE AGGREGATE AMOUNT OF THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT OR (B) ONE THOUSAND U.S. DOLLARS (USD $1,000).
5.3. THE FOREGOING EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THIS AGREEMENT OR ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
5.4. Licensor is willing to enter into this Agreement only in consideration of and in reliance upon the provisions contained herein, which are an essential part of the bargain underlying this Agreement. Both Parties understand and agree that the exclusion of warranties, limitation of liability, and the limitation of remedies allocate risks between the Parties as authorized under applicable law.

6. General Provisions.

6.1. Relationship and Assignment. Nothing in this Agreement shall be construed to create an agency, joint venture, partnership or other form of business association between the Parties. Except to an affiliate or in connection with its merger, acquisition or sale of all or substantially all of its assets, Licensee shall not assign its rights under this Agreement without Licensor's prior written consent. An "affiliate" for purpose of this Agreement is any person that directly or indirectly controls, is under common control with or is controlled by another person, where such control represents the right to elect a majority of the board of directors or other governing body with the legal right to manage the affairs of a corporation or other entity or has the power to direct or cause the direction of management or policies (whether through beneficial ownership of securities or other ownership interests, by contract or otherwise), whether by ownership, contract or otherwise. Any purported assignment in violation of this paragraph is void. This Agreement is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns.
6.2. Construction. No failure by any Party to exercise, and no delay by any Party in exercising, any right, power or remedy with respect to the obligations secured hereby will operate as a waiver of any such right, power or remedy. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable the remaining provisions will continue in full force and effect to the maximum extent permissible without being impaired or invalidated in any way.
6.3. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the substantive laws of the United States and the State of California, without regard to or application of provisions relating to conflicts of law. Any litigation arising under this Agreement will be brought exclusively in the federal courts of the Northern District of California or any state courts therein, and the Parties hereby consent to the personal jurisdiction and venue of such courts. The provisions of the United Nations Convention of Contracts for the International Sale of Goods shall not be applicable. If in the event of any litigation arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
6.4. U.S. Government Restricted Rights. If Licensee is an agency or instrumentality of the United States Government, the Software is "commercial computer software" and "commercial computer software documentation", and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this Agreement. Contractor/manufacturer is MoSys, Inc., 3301 Olcott Street, Santa Clara, California 95054, U.S.A.
6.5. U.S. Export Requirements. The Software is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulation in other countries ("Export Control Laws"). Licensee shall not export or re-export, directly or indirectly, and shall prohibit its customers from any such export or re-export of, the Software, or any part thereof, without first obtaining any necessary U.S. or other governmental licenses and approvals. Licensee hereby gives its assurance to Licensor that it will not knowingly, unless prior authorization is obtained from the appropriate U.S. governmental body, re-export, directly or indirectly, the Software, or any part thereof, to any the countries or nationals thereof listed in Country Group E:1, as such list may be amended from time to time by the U.S. Department of Commerce and/or U.S. Treasury Department (which list currently includes Cuba, Iran, North Korea, Sudan, Syria) or (b) to any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. Licensee will indemnify, defend and hold harmless Licensor and its successors, affiliates, directors, officers, employees and agents form and against any liabilities, damages, expenses, fines or penalties incurred as a result of the export or re-export by Licensee of the Software in violation of Export Control Laws.
6.6. Notices. All notices made by the Parties must be in writing and will be deemed validly given if delivered by hand or sent by certified mail to the address of the Parties to the attention of the Parties' Legal or Chief Financial Officer. Notice sent as provided herein will be deemed to have been received on the date when actually received.
6.7. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous written and oral agreements, understandings, or communications between the Parties with respect to the subject matter hereof. This Agreement is solely between the Parties, and there is no third party beneficiary to this Agreement intended by the Parties or otherwise. This Agreement may not be modified except in writing signed by a duly authorized representative of each Party that identifies itself as an amendment to this Agreement. If You have any questions concerning this Agreement, please write to: MoSys, Inc., 3301 Olcott Street, Santa Clara, California 95054 U.S.A., Attention: Legal; or send an email to: IP@mosys.com.