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| 1 | +**IMPORTANT-READ CAREFULLY: This license agreement ("Agreement") is a legal agreement |
| 2 | +between you (or if you are acting on behalf of your employer, then ‘you’ means your |
| 3 | +employer) ("Licensee") and CA Inc., a Broadcom company, with offices located at 1320 |
| 4 | +Ridder Park Drive, San Jose, CA 95131, on behalf of itself, its affiliates and licensors |
| 5 | +(“Broadcom”), for Licensee’s license to the CA software that accompanies this Agreement |
| 6 | +which includes computer software (which may include source code, object code and/or |
| 7 | +software tools) and may include associated media, printed materials, datasheets, "online" or |
| 8 | +electronic documentation, and Internet-based services ("Software"). This Agreement is |
| 9 | +effective date as of the date in which you download, access, use, copy or install the Software |
| 10 | +(“Effective Date”).** |
| 11 | + |
| 12 | + |
| 13 | +BY DOWNLOADING THE SOFTWARE PACKAGE, OR ACCESSING OR INSTALLING THE |
| 14 | +SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT, UNDERSTAND |
| 15 | +IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO |
| 16 | +THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE |
| 17 | +SOFTWARE. |
| 18 | + |
| 19 | + |
| 20 | +NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants |
| 21 | +contained in this Agreement the parties hereby agree as follows: |
| 22 | + |
| 23 | + |
| 24 | +LICENSE |
| 25 | + |
| 26 | + |
| 27 | +Subject to the terms and conditions of this Agreement, Broadcom grants to Licensee the limited, |
| 28 | +personal, non-exclusive, non-transferable, revocable right, without right to sublicense, to (a) |
| 29 | +evaluate, use, and reproduce the Software in support of Licensee’s internal use of the Broadcom |
| 30 | +Product; and/or (b) modify and create customizations and modifications of the Software’s user |
| 31 | +interface (UI) for use solely by Licensee (“Modifications”) in its use of the Broadcom Product. To the |
| 32 | +extent that Software includes any open source code, the terms of the applicable open source license |
| 33 | +shall govern Licensee’s use of such open source. For purposes of this clause, “CA Product” refers |
| 34 | +to CA Layer 7 API Developer Portal and/or API Management SaaS. |
| 35 | +You grant to Broadcom a worldwide, royalty-free, perpetual, irrevocable license to utilize and exploit |
| 36 | +any feedback you provide related to the Software or CA Product for any commercial purpose without |
| 37 | +further permission from you. |
| 38 | + |
| 39 | + |
| 40 | +RESTRICTIONS |
| 41 | + |
| 42 | + |
| 43 | +This Software is protected by copyright laws in the United States and in other countries throughout |
| 44 | +the world. This Software is licensed, not sold. Any other use of this Software outside, or removal |
| 45 | +from, the country in which it was licensed shall automatically terminate this license. Licensee may |
| 46 | +not use, disclose, modify, assign, pledge, transfer, reproduce or distribute the Software except as |
| 47 | +expressly permitted in this Agreement. Licensee shall not decompile, reverse engineer, modify, or |
| 48 | +otherwise attempt to derive source code from any binary versions of the Software. Additionally, |
| 49 | +Licensee may not remove, efface or otherwise obscure any proprietary notices, labels, or marks on |
| 50 | +the Software. Licensee agrees that each copy of the Software will include reproductions of all |
| 51 | +proprietary notices, labels or marks included therein. Licensee may not use the Software for |
| 52 | +competitive analysis or benchmarking of any kind. Under no circumstance shall Licensee use the |
| 53 | +Software to develop or market any conversion utility or aid specific thereto that would enable users |
| 54 | +to convert from the CA Product to an alternative product, nor will you utilize the Software to assist in |
| 55 | +the development, design or sale of a computer software program that is intended to provide similar |
| 56 | +functionality as the CA Product. |
| 57 | + |
| 58 | + |
| 59 | +Licensee further acknowledges and agrees that all right, title and interest in the Software and all |
| 60 | +subsequent copies thereof regardless of the form or media are retained and held by Broadcom. |
| 61 | +Except as expressly provided by this Agreement, no license or right is granted hereunder, whether |
| 62 | +expressly or by implication, estoppel or otherwise, to use, execute, reproduce, display, perform, |
| 63 | +distribute internally or externally, sell, license, sublicense or otherwise transfer copies of or prepare |
| 64 | +derivative works based upon any portion of the Software. ALL RIGHTS NOT EXPRESSLY |
| 65 | +GRANTED HEREIN ARE RESERVED BY BROADCOM. |
| 66 | + |
| 67 | + |
| 68 | +TERMINATION |
| 69 | + |
| 70 | + |
| 71 | +Licensee may terminate this Agreement at any time by ceasing use and destroying all copies of the |
| 72 | +Software. Also, Licensee's rights under this Agreement will terminate immediately without notice |
| 73 | +from Broadcom if Licensee fails to comply with any provision of this Agreement. Upon termination, |
| 74 | +Licensee shall destroy the Software and all copies thereof that are in Licensee's possession or |
| 75 | +control. |
| 76 | + |
| 77 | + |
| 78 | +NO SUPPORT |
| 79 | + |
| 80 | + |
| 81 | +The Software is provided without any Broadcom obligation to provide support of any kind, including |
| 82 | +without limitation any obligation to correct any defects or provide any updates to the Software to |
| 83 | +Licensee. Broadcom is under no obligation to, and will not, support any Modifications made by |
| 84 | +Licensee. |
| 85 | + |
| 86 | + |
| 87 | +NO WARRANTY / DISCLAIMER |
| 88 | + |
| 89 | + |
| 90 | +TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED "AS IS" AND |
| 91 | +WITH ALL FAULTS AND BROADCOM MAKES NO PROMISES, REPRESENTATIONS OR |
| 92 | +WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT |
| 93 | +TO THE SOFTWARE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY |
| 94 | +REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT |
| 95 | +DEFECTS, AND BROADCOM SPECIFICALLY DISCLAIMS ALL IMPLIED (IF ANY) WARRANTIES |
| 96 | +OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR |
| 97 | +PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, QUIET ENJOYMENT, QUIET |
| 98 | +POSSESSION OR CORRESPONDENCE TO DESCRIPTION. THE ENTIRE RISK ARISING OUT |
| 99 | +OF USE OR PERFORMANCE OF THE SOFTWARE LIES WITH LICENSEE. |
| 100 | + |
| 101 | + |
| 102 | +EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES |
| 103 | + |
| 104 | + |
| 105 | +TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BROADCOM OR ITS |
| 106 | +LICENSORS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR |
| 107 | +EXEMPLARY DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO |
| 108 | +THIS AGREEMENT OR LICENSEE'S USE OF OR INABILITY TO USE THE SOFTWARE, OR THE |
| 109 | +PROVISION OR FAILURE TO PROVIDE SUPPORT SERVICES, INCLUDING BUT NOT LIMITED |
| 110 | +TO LOST PROFITS, LOSS OF CONFIDENTIAL INFORMATION, DATA, OR OTHER |
| 111 | +INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, |
| 112 | +FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR REASONABLE CARE), |
| 113 | +NEGLIGENCE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY |
| 114 | +OTHER CLAIM FOR PECUNIARY OR OTHER LOSS WHATSOEVER, OR FOR ANY CLAIM OR |
| 115 | +DEMAND AGAINST LICENSEE BY ANY OTHER PARTY, EVEN IF BROADCOM HAS BEEN |
| 116 | +ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY |
| 117 | +NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. |
| 118 | + |
| 119 | + |
| 120 | +LIMITATION OF LIABILITY AND REMEDIES |
| 121 | + |
| 122 | + |
| 123 | +NOTWITHSTANDING ANY DAMAGES LICENSEE MAY INCUR FOR ANY REASON |
| 124 | +WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE |
| 125 | +AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF BROADCOM AND ANY |
| 126 | +OF ITS LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT AND LICENSEE’S |
| 127 | +EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER |
| 128 | +OF THE AMOUNT ACTUALLY PAID FOR THE SOFTWARE ITSELF OR U.S. $1. THE |
| 129 | +FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE |
| 130 | +MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS |
| 131 | +ESSENTIAL PURPOSE. |
| 132 | + |
| 133 | + |
| 134 | +HIGH-RISK USES |
| 135 | + |
| 136 | + |
| 137 | +BROADCOM DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH LICENSEE’S USE OF |
| 138 | +THE SOFTWARE IN ANY MEDICAL, NUCLEAR, AVIATION, NAVIGATION, MILITARY, OR OTHER |
| 139 | +HIGH RISK DEVICE OR APPLICATION (“HIGH-RISK USES”). LICENSEE REPRESENTS AND |
| 140 | +WARRANTS THAT IT WILL NOT USE THE SOFTWARE IN ANY HIGH-RISK USES. LICENSEE |
| 141 | +SHALL INDEMNIFY, DEFEND, AND HOLD BROADCOM HARMLESS AGAINST ANY LOSS, |
| 142 | +LIABILITY, OR DAMAGE OF ANY KIND THAT BROADCOM INCURS IN CONNECTION WITH |
| 143 | +BREACH OF THE WARRANTY IN THIS SECTION. |
| 144 | + |
| 145 | + |
| 146 | +CONFIDENTIALITY |
| 147 | + |
| 148 | + |
| 149 | +“Confidential Information” means any trade secrets, confidential data, or other confidential |
| 150 | +information relating to or used in the Software. Licensee shall not use or disclose Confidential |
| 151 | +Information except as expressly permitted hereunder and shall use all reasonable efforts to protect |
| 152 | +the confidentiality thereof. Licensee agrees and acknowledges that the structure, sequence and |
| 153 | +organization of the Software are valuable trade secrets of Broadcom, and thus constitute |
| 154 | +Confidential Information under this Agreement. |
| 155 | + |
| 156 | + |
| 157 | +INDEMNIFICATION |
| 158 | + |
| 159 | + |
| 160 | +Licensee will indemnify, defend and hold harmless Broadcom and its employees, directors, |
| 161 | +representatives, affiliates, licensors, and agents (“Indemnified Parties”) from all losses, damages and |
| 162 | +all reasonable expenses and costs, including reasonable attorneys’ fees, incurred by them in any |
| 163 | +claim, suit or proceeding arising from or related to (i) the actual or alleged infringement by your |
| 164 | +Modifications of any third-party intellectual property rights; (ii) statements and representations made |
| 165 | +by you regarding the features and functionality of your Modifications including but not limited to the |
| 166 | +interoperability and compatibility of your Modifications with the CA Product; (iii) breach of your |
| 167 | +obligations hereunder; or (iv) the actual or alleged incompatibility of your Modifications with the CA |
| 168 | +Product. |
| 169 | + |
| 170 | + |
| 171 | +TRADE CONTROL REGULATIONS |
| 172 | + |
| 173 | + |
| 174 | +The Software, including technical data, may be subject to trade control laws and may be subject to |
| 175 | +export or import regulations. Licensee warrants that it will comply in all respects with all such |
| 176 | +regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or |
| 177 | +import the Software to the extent required. |
| 178 | + |
| 179 | + |
| 180 | +NON-ASSIGNABILITY |
| 181 | + |
| 182 | + |
| 183 | +Licensee may not sell, transfer, assign or subcontract the Software or any right or obligation set forth |
| 184 | +in this Agreement without the prior written consent of Broadcom. Any contrary act shall be null and |
| 185 | +void. |
| 186 | + |
| 187 | + |
| 188 | +U.S. GOVERNMENT LICENSE RIGHTS |
| 189 | + |
| 190 | + |
| 191 | +The Software is licensed only with "RESTRICTED RIGHTS," and use, duplication or disclosure by |
| 192 | +the Government is subject to restrictions as set forth in FAR, 48 CFR 52.227-14 and DFAR252.227- |
| 193 | +7013 et seq. or its successor(s). Use of the Software by the Government constitutes |
| 194 | +acknowledgement that the Software is commercial, and of Broadcom's proprietary rights therein. The |
| 195 | +Contractor/Manufacturer of the Software is Broadcom. Licensee agrees not to remove or deface any |
| 196 | +portion of any legend provided in or with the Software provided hereunder. The Software is a trade |
| 197 | +secret of Broadcom for all purposes of the Freedom of Information Act and is, in all respects, |
| 198 | +proprietary data belonging solely to Broadcom. |
| 199 | + |
| 200 | + |
| 201 | +MISCELLANEOUS |
| 202 | + |
| 203 | + |
| 204 | +Broadcom and Licensee are independent contractors. This is the entire Agreement between the |
| 205 | +parties relating to the subject matter hereof, supersedes any and all prior proposals, agreements and |
| 206 | +representations between the parties, whether written or oral, and no waiver, modification or |
| 207 | +amendment of the Agreement shall be valid unless in writing signed by each party. The waiver of a |
| 208 | +breach of any term hereof shall in no way be construed as a waiver of any other term or breach |
| 209 | +hereof. If any provision of this Agreement shall be held by a court of competent jurisdiction to be |
| 210 | +contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. If one |
| 211 | +or more of the provisions contained in this Agreement shall be unenforceable, then such provision |
| 212 | +shall be considered inoperative to the extent of such enforceability and the remainder of this |
| 213 | +Agreement shall continue in full force and effect. The parties hereto agree to replace any such |
| 214 | +invalid or unenforceable provision with a new provision that has the most nearly similar permissible |
| 215 | +economic or other effect. This Agreement is governed by the laws of the State of California without |
| 216 | +reference to conflict-of-laws principles. The parties expressly stipulate that the 1980 United Nations |
| 217 | +Convention on Contracts for the International Sale of Goods and the United Nations Convention on |
| 218 | +the Limitations Period in the International Sale of Goods are hereby excluded and shall not apply. All |
| 219 | +disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and |
| 220 | +federal courts located in Santa Clara County, California, and the parties irrevocably agree and |
| 221 | +submit to the personal and exclusive jurisdiction and venue of these courts, and waive all defenses |
| 222 | +thereto including the defense of forum nonconveniens. In any action regarding this Agreement, the |
| 223 | +prevailing party shall be entitled to receive, in addition to any other relief, reasonable attorneys' fees |
| 224 | +and expenses. If one or more of the provisions contained in this Agreement shall be unenforceable, |
| 225 | +then such provision shall be considered inoperative to the extent of such enforceability and the |
| 226 | +remainder of this Agreement shall continue in full force and effect. The parties hereto agree to |
| 227 | +replace any such invalid or unenforceable provision with a new provision that has the most nearly |
| 228 | +similar permissible economic or other effect. |
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