Habana Outbound Software License Agreement

HABANA LABS SYNAPSEAI® SOFTWARE SUITE
OUTBOUND SOFTWARE LICENSE AGREEMENT

DO NOT DOWNLOAD, INSTALL, ACCESS, COPY, OR USE ANY PORTION OF THE INTEL® GAUDI® SOFTWARE (“SOFTWARE”) UNTIL YOU HAVE READ AND ACCEPTED THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). BY INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If You do not agree to be bound by, or the entity for whose benefit You act has not authorized You to accept, these terms and conditions, do not install, access, copy, or use the Software and destroy all copies of the Software in Your possession.

This Agreement is entered into between Habana Labs, Ltd., with a principal place of business at 5 Tarshish Street, Caesarea Industrial Zone, Israel (“Habana”) and You. “You” refers to you or your employer or other entity for whose benefit you act, as applicable. If You are agreeing to the terms and conditions of this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the legal authority to bind that legal entity to the Agreement, in which case, “You” or “Your” shall be in reference to such entity. Habana and You are referred to herein individually as a “party” or, together, as the “parties.” The parties, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which they acknowledge, and intending to be legally bound, agree as follows:

1. PURPOSE. You seek to obtain, and Habana desires to provide You, the Software so You can develop and use software packages that (i) incorporate the Software and (ii) can only be used with Habana Labs-based Products (“Your Software”). A “Habana Labs-based Product(s)” refers to a device that includes, incorporates, or implements Habana hardware(s), software or service(s). Software does not include any software that may be listed in the “third-party-software.txt” or other similarly-named text file that may accompany the Software (“Third Party Software”), which are subject to the terms of Section 6.
2. LIMITED LICENSE. Subject to the terms and conditions of this Agreement, Habana grants to You a limited, nonexclusive, non-transferable, non-assignable, revocable, worldwide, fully paid-up limited right and license during the term of this Agreement, without the right to sublicense, under Habana’s copyrights, and solely for the Purpose, to (i) reproduce internally a reasonable number of copies of the Software; (ii) internally prepare derivative works (as defined in 17 U.S.C. § 101) of those portions of the Software originally provided to You by Habana in source code form (“Derivatives”); (iii) use the Software and Derivatives internally; (iv) incorporate the Software and/or Derivatives into Your Software; and (v) display and publicly perform, but not redistribute, the Software and/or Derivatives, only as incorporated into Your Software.
3. LICENSE RESTRICTIONS. Unless otherwise expressly permitted under the Agreement, You will not, and will not allow any third party to (i) use, copy, distribute, sell or offer to sell the Software, Derivatives or associated documentation; (ii) modify, adapt, decrypt, enhance, disassemble, decompile, reverse engineer, adapt, augment or otherwise change or create derivative works of the Software except and only to the extent as specifically required by mandatory applicable laws; (iii) use or make the Software and/or Derivatives available for the use or benefit of third parties, such as in a software as a service (“SaaS”); (iv) port, use, or enable others to port or use, the Software and/or Derivatives with a non-Habana Labs-based Product; (v) modify, create a derivative work, link, or distribute the Software and/or Derivatives so that any part of it becomes subject to the terms of an open source license which requires that it must be distributed in source code form; it must be licensed under the same open source license terms; and its derivative works must be licensed under the same open source license terms (such as the GNU General Public License or the Mozilla Public License); or (vi) publish or provide benchmarks or comparison test results of the Software or Derivatives.
4. OWNERSHIP. You acknowledge there are significant uses of the Software in its original, unmodified and uncombined form. All right, title and interest in and to the Software, Derivatives and associated documentation are and will remain the exclusive property of Habana and/or its licensors or suppliers. You may not remove any copyright notices from the Software. Except as expressly provided herein, no licenses or other rights including, but not limited to, patent, copyright, trade secret, trademark, trade name, service mark or other Habana intellectual property licenses or rights, by implication, estoppel or otherwise, are granted to You by Habana.
5. LICENSE TO FEEDBACK. This Agreement does not obligate You to provide Habana with materials, information, comments, ideas, contributions, suggestions, or other communication regarding the features, functions, performance or use
   of the Software (“Feedback”). To the extent You provide Habana with Feedback in a tangible form, You grant to Habana and its affiliates, successors and assigns, a non-exclusive, perpetual, sublicensable, irrevocable, worldwide, royalty-free, fully paid-up and transferable license, to and under all of Your intellectual property rights, whether perfected or not, to have Habana publicly perform, publicly display, reproduce, use, make, have made, sell, offer for sale, distribute, import, create derivative works of and otherwise exploit any Feedback regarding the Software provided by You or on Your behalf.
6. THIRD PARTY SOFTWARE. Third Party Software, even if included with the distribution of the Software, may be governed by separate license terms, including without limitation, third party license terms, open source software notices and terms, and/or other Habana software license terms. These separate license terms solely govern Your use of the Third Party Software.
7. MEDIA FORMAT CODECS AND DIGITAL RIGHTS MANAGEMENT. You acknowledge and agree that Your use of the Software as permitted by this Agreement may require You to procure license(s) from third parties that may hold intellectual property rights applicable to any media decoding, encoding or transcoding technology (e.g., the use of an audio or video codec) and/or digital rights management capabilities of Software, if any. Should any such additional licenses be required, You are solely responsible for obtaining any such licenses and agree to obtain any such licenses at Your own expense.
8. NO OBLIGATION; NO AGENCY. Habana may make changes to the Software, or items referenced therein, at any time without notice. Habana is not obligated to support, update, provide training for, or develop any further version of the Software or to grant any license thereto. No agency, franchise, partnership, joint-venture, or employee-employer relationship is intended or created by this Agreement.
9. EXCLUSION OF WARRANTIES. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Habana does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items within the Software.
10. LIMITATION OF LIABILITY; INDEMNIFICATION. IN NO EVENT WILL HABANA OR ITS AFFILIATES, LICENSORS OR SUPPLIERS (INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST DATA) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF HABANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY IN PART NOT APPLY TO YOU.
    THE SOFTWARE LICENSED HEREUNDER IS NOT DESIGNED OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO PERSONAL INJURY OR DEATH.
    YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HABANA AND YOU. YOU ACKNOWLEDGE HABANA WOULD BE UNABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS.
    YOU WILL INDEMNIFY AND HOLD HABANA AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) HARMLESS AGAINST ALL CLAIMS, LIABILITIES, LOSSES, COSTS, DAMAGES, AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES), ARISING OUT OF, DIRECTLY OR INDIRECTLY, FROM YOUR USE OR DISTRIBUTION OF THE SOFTWARE AND/OR DERIVATIVES AND ANY CLAIM OF PRODUCT LIABILITY, PERSONAL INJURY OR DEATH ASSOCIATED WITH ANY UNINTENDED USE, EVEN IF SUCH CLAIM ALLEGES THAT HABANA OR AN HABANA AFFILIATE, LICENSORS OR SUPPLIER WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE SOFTWARE.
11. TERMINATION AND SURVIVAL. Either party may terminate this Agreement for any reason with thirty (30) days’ written notice, however if You or someone acting on Your behalf or at Your behest violates any of its terms or conditions, this Agreement will terminate immediately. Upon termination or expiration, You will immediately destroy and ensure the destruction of the Software (including providing certification of such destruction). Upon termination or expiration of this
    Agreement, all licenses granted to You hereunder terminate immediately. Sections 4 through 18, as well as the defined terms from the beginning of the Agreement through Section 2, will survive termination or expiration of this Agreement.
12. GOVERNING LAW AND JURISDICTION. This Agreement and any dispute arising out of or relating to it will be governed by the laws of the U.S.A. and Delaware, without regard to conflict of laws principles. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980). The state and federal courts sitting in Delaware, U.S.A. will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement. Each party consents to personal jurisdiction and venue in those courts. A party that obtains a judgment against the other party in the courts identified in this section may enforce that judgment in any court that has jurisdiction over the parties.
13. EXPORT REGULATIONS/EXPORT CONTROL. You agree that neither You nor Your subsidiaries will export/re-export the Software, directly or indirectly, to any country for which the U.S. Department of Commerce or any other agency or department of the U.S. Government or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining any such required license or approval. In the event the Software is exported from the U.S.A. or re-exported from a foreign destination by You or Your subsidiary, You will ensure that the distribution and export/re-export or import of the Software complies with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government.
14. GOVERNMENT RESTRICTED RIGHTS. The Software is a commercial item (as defined in 48 C.F.R. 2.101) consisting of commercial computer software and commercial computer software documentation (as those 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, You will not provide the Software to the U.S. Government. Contractor or Manufacturer is Habana Labs Corporation, 2200 Mission College Blvd., Santa Clara, CA 95054.
15. ASSIGNMENT. You may not delegate, assign or transfer this Agreement, the license(s) granted or any of Your rights or duties hereunder, expressly, by implication, by operation of law, or otherwise and any attempt to do so, without Habana’s express prior written consent, will be null and void. Habana may assign, delegate and transfer this Agreement, and its rights and obligations hereunder, in its sole discretion.
16. ENTIRE AGREEMENT; SEVERABILITY. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and merge and supersede all prior or contemporaneous agreements, understandings, negotiations and discussions. Neither party will be bound by any terms, conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. In the event any provision of this Agreement is unenforceable or invalid under any applicable law or applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, instead such provision will be changed and interpreted so as to best accomplish the objectives of such provision within legal limits.
17. WAIVER. The failure of a party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will waiver by a party of a breach of any provision hereof constitute a waiver of the provision itself.
18. PRIVACY. YOUR PRIVACY RIGHTS ARE SET FORTH IN HABANA’S PRIVACY NOTICE, WHICH FORMS A PART OF THIS AGREEMENT. PLEASE REVIEW THE PRIVACY NOTICE AT HTTPS://HABANA.AI/PRIVACY-NOTICE/ TO LEARN HOW HABANA COLLECTS, USES AND SHARES INFORMATION ABOUT YOU.