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WIND RIVER SYSTEMS, INC.

SOURCE CODE LICENSE AND DISTRIBUTION AGREEMENT

THIS SOURCE CODE LICENSE AND DISTRIBUTION AGREEMENT FOR DESKTOP APPLICATIONS ("AGREEMENT") IS A LEGAL CONTRACT BETWEEN WIND RIVER SYSTEMS, INC. ("WIND RIVER") AND THE ENTITY OR INDIVIDUAL ("LICENSEE" OR "YOU") WHO HAS RECEIVED THIS AGREEMENT AND THE ACCOMPANYING ZINC APPLICATION FRAMEWORK SOFTWARE AND DOCUMENTATION. WIND RIVER IS WILLING TO GRANT TO LICENSEE THE FOLLOWING LICENSE ON THE CONDITION THAT LICENSEE ACCEPTS ALL TERMS OF THIS AGREEMENT.

DO NOT INSTALL, DOWNLOAD OR USE THE ZINC APPLICATION FRAMEWORK SOFTWARE UNTIL YOU HAVE READ AND ACCEPTED THIS LICENSE AGREEMENT. BY INSTALLING, DOWNLOADING OR USING THE SOFTWARE YOU ACCEPT THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THIS LICENSE AGREEMENT YOU MUST NOT INSTALL DOWNLOAD, OR USE THE SOFTWARE.

Please read the terms carefully before clicking on the "Accept" button, as by clicking on the "Accept" button you acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions.

1. Definitions.

1. "Authorized Site"

means the specific address of Licensee’s facility consisting of a single building or multiple buildings on a contiguous campus where the Host OS is physically located.

- "Desktop Application"
means the computer software program application developed by Licensee using a Desktop Operating Environment, which includes a Run-Time Module but no Software Source Code. Applications which do not require a Desktop Operating Environment are considered to be "Embedded Applications." A different license must be purchased from Wind River or its authorized reseller for use of the Software to develop Embedded Applications.

- "Desktop Operating Environment"
means an operating environment which includes either the complete X/Motif or the complete Win32 library. Scaled down versions of such operating environments, which for example include a subset of the standard environments, or derived versions, are not considered Desktop Operating Environments.

- "Documentation"
means the online documentation and printed documentation, if any, provided to Licensee in connection with this Agreement.

- "End User"
means an entity to which Licensee provides its Desktop Application.

- "Host OS"
means the host operating system on which Licensee is authorized to use the Software pursuant to the terms and conditions of this Agreement.

- "Intellectual Property Rights"
means all copyrights, trademarks, trade secrets, patents, mask works and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto.

- "Object Code"
means the computer programming code in a form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.

- "Permitted Modifications"
means (i) without limitation, any adaptations, modifications, improvements, enhancements, revisions or interface elements created from the Software Source Code (whether such modifications are in Object Code or Source Code) in any form or medium whatsoever; and (ii) any "derivative" work of the Software as defined in the Copyright Law of the United States of America, 17 U.S.C. §101 et seq.

- "Project"
means a concerted undertaking by a Licensee to design or produce a Desktop Application that uses a specific Desktop Operating Environment.

- "Run-Time Module"
means the Object Code derived from compiling the Software, including linkable routines (e.g. *.LIB, lib*.a) and/or distributable files and any Permitted Modifications thereto, or any portion thereof, to be incorporated into a Desktop Application as inseparably embedded code.

- "Software"
means the Zinc Application Framework computer programming code, including both Source Code and Object Code, and accompanying Documentation in the form and format provided under this Agreement, including updates, if any, provided by Wind River, and all full or partial copies, whether such copies are provided by Wind River or made by Licensee as permitted under this Agreement. Software includes, without limitation, all linkable routines, distributable files and non-distributable files.

- "Source Code"
means computer programming code in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation.

- License
.

1. Development License
. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Wind River hereby grants to Licensee a restricted, personal, internal-use only, non-exclusive, non-transferable (without the right to grant sublicenses) license: (i) to use the Software Source Code, solely at the Authorized Site, on the Host OS, in connection with the Project; (ii) to reproduce the Software Source Code for archive purposes, consistent with Licensee’s standard archive procedures; (iii) to create Permitted Modifications of the Software Source Code, solely to the extent necessary to support the development of the Desktop Application; and (iv) to compile the Software Source Code, including any Permitted Modifications thereof, into a Run-Time Module.

2. Distribution License
. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Wind River hereby grants to Licensee a restricted, personal, non-exclusive, non-transferable (without the right to grant sublicenses), royalty-free license: (i) to reproduce an unlimited number of copies of the Run-Time Module, solely in Object Code, at the Authorized Site; and (ii) to distribute such copies of the Run-Time Module to End Users worldwide, solely as inseparably embedded content in the Desktop Application, subject to an End User License Agreement, the terms of which shall be consistent with this Agreement and no less protective of Wind River, its affiliates and its licensors as the restrictions listed in this Agreement.

- License Restrictions
.

1. Licensee Restrictions
.

1. Licensee shall reproduce and include any and all copyright notices and proprietary rights legends, as such notice and legend appear in the original Software, on any copy of the Software, in any Permitted Modifications and on the Run-Time Modules.

2. The Software and all Permitted Modifications in Source Code shall be handled, used and stored, solely at the Authorized Site. External network access of such Source Code (i.e., by any computers or terminals not located at the Authorized Site) shall be permitted; provided, however, Licensee shall be responsible for maintaining records regarding the names and location of employees and contractors granted such external access of such Source Code; and further provided, Licensee shall be liable for any breach by such employees and contractors under of the terms of this Agreement.

3. Licensee shall not sell, sublicense, license, transfer or otherwise make available the Software or any Permitted Modifications in Source Code to any third party.

4. Licensee shall maintain and, upon Wind River’s reasonable request, provide to Wind River, the names of all employees and independent contractors who have had access to the Software Source Code.

5. Licensee shall not market, distribute or otherwise transfer copies of the Software or Permitted Modifications. Licensee may not rent, lease, timeshare or loan the Software or the Permitted Modifications.

6. Licensee shall use its best efforts to protect the Software and Permitted Modifications in Source Code from unauthorized access, reproduction, disclosure or use. In the event Licensee becomes aware of any unauthorized use or disclosure of Software or any Permitted Modifications in Source Code, Licensee shall notify Wind River immediately in writing and shall give full cooperation, at Licensee’s expense, to minimize the effects of such unauthorized use or disclosure.

7. UPON TRANSFER OF ANY COPY OF THE SOFTWARE OR PERMITTED MODIFICATIONS IN SOURCE CODE TO ANOTHER PARTY, THIS LICENSE WILL AUTOMATICALLY TERMINATE.

8. The Software licensed under this Agreement may contain or be derived from materials of third party licensors. Such third party materials may be subject to restrictions in addition to those listed in this Section 3, which restrictions, if any, are set forth at the end of this Agreement.

2. End User Restrictions
. Licensee shall take all steps necessary to protect Wind River’s and its licensors’ proprietary rights in the Run-Time Module and to ensure that each Run-Time Module distributed by Licensee will be accompanied by a localized copy of an End User license agreement ("End User License Agreement"). Such End User License Agreement shall prohibit the End User from: (i) copying the Run-Time Module, except for archive purposes consistent with the End User’s archive procedures; (ii) transferring the Run-Time Module to a third party apart from the Desktop Application; (iii) modifying, decompiling, disassembling, reverse engineering or otherwise attempting to derive the Source Code of the Run-Time Module; (iv) exporting the Run-Time Module or underlying technology in contravention of applicable U.S. and foreign export laws and regulations; and (v) using the Run-Time Module other than in connection with operation of the Desktop Application. In addition, the End User License Agreement shall (i) state that the Run-Time Module is licensed, not sold and that Licensee and its licensors retain ownership of all copies of the Run-Time Module; (ii) expressly disclaim all implied warranties including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; and (iii) exclude liability for any special, indirect, punitive, incidental and consequential damages. The End User License Agreement shall also state that, with respect to the Run-Time Module, Wind River and its licensors are third party beneficiaries of the End User License Agreement and that the provisions related to the Run-Time Module are made expressly for the benefit of, and are enforceable by, Wind River and its licensors.

- Ownership
. Wind River and its licensors shall retain exclusive ownership of all worldwide Intellectual Property Rights in and to the Software and any copies thereof, and in and to any Permitted Modifications. Licensee hereby assigns to Wind River any such rights Licensee may have in and to the foregoing. All rights in and to the Software not expressly granted to Licensee in this Agreement are expressly reserved for Wind River and its licensors.

- Term and Termination
. This Agreement shall commence upon the date that Licensee accepts this Agreement ("Effective Date") and continue until terminated as set forth in this Agreement. This Agreement will immediately terminate upon Licensee’s breach of this Agreement, unless such breach is curable and is cured by Licensee within ten (10) days after notice of such breach is provided by Wind River. Upon termination, Licensee agrees: (i) not to use the Software or Permitted Modifications for any purpose whatsoever; (ii) to destroy the Software, Permitted Modifications, and any copies thereof, then in Licensee’s possession; and (iii) to certify to Wind River that such destruction has taken place. Upon termination Wind River may repossess all copies of the Software and Permitted Modifications then in Licensee’s possession or control. Termination of this Agreement shall not affect any End User rights previously granted by Licensee pursuant to Section 2.2. These remedies shall be cumulative and in addition to any other remedies available to Wind River. The following Sections shall survive any termination of this Agreement: Sections 1, 4, 5, 6, 8, 9 and 10.

- Warranty Disclaimer
. LICENSEE ASSUMES FULL RESPONSIBILITY FOR: (I) THE SELECTION OF THE SOFTWARE; (II) VERIFYING THE RESULTS OBTAINED FROM THE USE OF THE SOFTWARE; AND (III) TAKING APPROPRIATE MEASURES TO PREVENT LOSS OF DATA. WIND RIVER DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT LICENSEE WILL BE ABLE TO ACHIEVE ANY PARTICULAR RESULTS FROM USE OR MODIFICATION OF THE SOFTWARE OR THAT THE SOFTWARE WILL OPERATE FREE FROM ERROR. WIND RIVER AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WIND RIVER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

- No Support
. This Agreement does not include support, installation or training. Licensee understands that Wind River does not provide any support of the Software, Permitted Modifications or Run-Time Modules; and, as such, Licensee accepts full responsibility for the installation, repair and maintenance at its own cost of the Software, Permitted Modifications and Run-Time Modules.

- Indemnification
. Licensee agrees to indemnify, defend and hold harmless Wind River, its shareholders, directors, officers, employees, agents and affiliated companies from and against any losses, costs, or damages (including reasonable attorneys’ fees) resulting from or in connection with any claims by third parties resulting from or in connection with the use, manufacture, or distribution of Desktop Applications by Licensee and Licensee’s direct and indirect End Users in any country, worldwide, provided that Wind River gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of any such claim at Licensee’s expense, and cooperates with Licensee, at Licensee’s expense, in defending or settling such claim. This indemnification obligation shall not apply to infringement actions or claims if such actions or claims are based solely on the use of the Wind River software in the form provided by Wind River.

- Limitation of Liability
. WIND RIVER AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF WIND RIVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WIND RIVER AND LICENSEE. WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS.

- General
.

1. Governing Law and Forum
. This Agreement shall be governed in all respects by the laws of the United States of America and the State of Delaware without regard to conflicts of law principles. All disputes arising under this Agreement shall be brought exclusively in Superior Court of the State of California in Santa Clara County or the U.S. District Court for the Northern District of California in San Francisco, California, as permitted by law. Licensee consents to the personal jurisdiction of the above courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

2. Attorneys’ Fees
. In the event any proceeding or lawsuit is brought by Wind River or Licensee in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.

3. Injunctive Relief
. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by Licensee will cause Wind River irreparable damage for which recovery of money damages would be inadequate, and that Wind River shall therefore be entitled to obtain timely injunctive relief to protect Wind River’s rights under this Agreement in addition to any and all remedies available at law.

4. Notices
. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or five (5) days after deposit in the mail. If the notice is to Wind River, a copy shall also be sent to the attention of its General Counsel at the Wind River address noted at the end of this Agreement.

5. No Agency
. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties.

6. Force Majeure
. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.

7. Waiver
. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

8. Severability
. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

9. Use of Licensee’s Name
. Licensee agrees that Wind River may use Licensee’s name and may disclose that Licensee is a licensee of Wind River products or services in Wind River advertising, press, promotion and similar public disclosures with respect to the Software and professional services; provided, however, that such advertising, promotion or similar public disclosures shall not indicate that Licensee in any way endorses any Wind River products, without prior written permission from Licensee. Licensee agrees that, upon Licensee’s public announcement of product designed with or containing Wind River products or services, Wind River may publicly disclose the nature of the Wind River involvement in said product.

10. Headings
. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.

11. Government End Users
. The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, Licensee will provide the Software to U.S. Government end users only pursuant to the terms and conditions therein.

12. Assignment
. Licensee may not delegate, assign or transfer this Agreement, the license(s) granted or any of Licensee’s rights or duties hereunder, including by way of merger (regardless of whether Licensee is the surviving entity) or acquisition, and any attempt to do so, without Wind River’s express prior written consent, shall be void. Wind River may assign this Agreement, and its rights and obligations hereunder, in its sole discretion.

13. Export Control
. All Software and technical information delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to strictly comply with all such laws and regulations.

14. Language
. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, unless otherwise noted, shall be in the English language.

15. Entire Agreement; Modification
. This Agreement constitutes the entire agreement between Licensee and Wind River and supersedes in their entirety any and all oral or written agreements previously existing between Licensee and Wind River with respect to the subject matter hereof. This Agreement may only be amended or supplemented by a writing that refers explicitly to this Agreement and that is signed by duly authorized representatives of Licensee and Wind River.

Should you have any questions concerning this Agreement, please write: Wind River Systems, Inc., Vice President, Intellectual Property and Legal Affairs, 500 Wind River Way, Alameda, CA 94501.

The Software and accompanying documentation are protected by United States Copyright Law and International Treaty. Unauthorized reproduction or distribution is subject to civil and criminal penalties.

By clicking on the "Accept" button you acknowledge that you have read this Agreement, understand it and agree to be bound by its terms and conditions.