Software Updates

You must accept the following license agreement before downloading software updates.

SOFTWARE LICENSE AGREEMENT - COMMERCIAL COMPUTER SOFTWARE

THIS SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND SPECTRUM. PLEASE READ THIS AGREEMENT CAREFULLY. BY REVIEWING, READING, ANALYSING OR USING ALL OR ANY PORTION OF THE SPECTRUM SOFTWARE YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN DO NOT REVIEW, READ, ANALYSE OR USE THIS SOFTWARE.

Spectrum owns all intellectual property in the Software. The Software and Documentation are Commercial Items. Spectrum permits you to Use the Software only in accordance with the terms of this Agreement. If you have any questions regarding this Agreement or if you wish to request any information from Spectrum please use the address and contact information included with the Software to contact Spectrum.

1. Definitions.

"Software" means: (a) the computer programming code and includes, without limitation, Example Source Code, as it may be so labeled in Spectrum's sales order acknowledgement howsoever contained whether on CD-ROM(s) or other media with which this Agreement is provided; (b) Spectrum technical information and related explanatory written materials, files or instructions ("Documentation"); (c) upgrades, modified versions, additions, and copies of the Software, if any, licensed to you by Spectrum (collectively, "Upgrades"); and (d) all modifications made to the foregoing.

"Example Source Code" means Source Code provided with the Software that demonstrates how to use the Software and how to integrate the Software into your Target Application.

"Source Code" " means computer programming code in human readable form, including but not limited to C, C++, VHDL, or Verilog, that is not suitable for machine execution without such intervening steps as interpretation, compilation, or in the case of FPGA code, synthesis, placing and routing.

"Target Application" means an item, device or system developed by you pursuant to the Project that contains an Approved Platform but that does not contain any software development functionality and that may contain a Run-Time Component or portion thereof.

"Run-Time Component" means components of the Software, in Object Code form, to be incorporated into a Target Application as inseparably embedded code.

"Object Code" means computer programming code in the form not readily perceivable by humans and suitable for machine execution without requiring such intervening steps as interpretation, compilation, or in the case of FPGA code, synthesis, placing and routing.

"Use" or "Using" means to review, read, access, install, download, copy or otherwise benefit from the functionality of the Software.

"Project" means the program, application or planned undertaking for which the Software was licensed.

"End User" means any entity to which you provide a Target Application for further distribution or such entity's own use, pursuant to an End User License Agreement.

"End User License Agreement" means a written license agreement in a commercially reasonable form containing the restrictions specified in paragraph 3.4 of this Agreement, pursuant to which you may sublicense to End Users the Run-Time Component that are incorporated into a Target Application.

"Authorized Site" means the specific address of your facility consisting of a single building or multiple buildings on a contiguous campus where one or more units of the Approved Platform are physically located.

"Approved Platform" means the signal processing platform on which you are authorized to Use the Software pursuant to the terms and conditions of this Agreement and as it may be so labeled in Spectrum's sales order acknowledgement.

"Spectrum" means Vecima Networks Inc. doing business as Spectrum Signal Processing, a British Columbia, Canada, company, 4210 Commerce Circle, Victoria, British Columbia, CANADA V8Z 6N6.

2. License Grants.

2.1 Software License.  Subject to your compliance with the terms and conditions of this Agreement and payment of the applicable license fees, Spectrum grants you a non-exclusive, non-transferable, worldwide, perpetual license for use of the Software on an Approved Platform at the Authorized Site for your Project.

2.2 Distribution License.  Subject to your compliance with the terms and conditions of this Agreement, and payment of the applicable license fees, Spectrum grants you a non-exclusive, non-transferable, license to distribute copies of the Run-Time Components as permitted in Spectrum's order acknowledgement, to End Users solely as inseparably embedded content in the Target Application, subject to an End User License Agreement.

2.3 Example Source Code License.   Subject to your compliance with the terms and conditions of this Agreement and the payment of the applicable fees, Spectrum hereby grants you a restricted, personal, non-transferable, non-exclusive, internal-use license: (i) to use the Example Source Code at the Authorized Site solely to develop a Target Application in connection with the Project; (ii) to modify the Example Source Code to create Run-Time Components; (iii) to compile the Example Source Code, including any modifications thereof, into Object Code; and (iv) to reproduce the Example Source Code for archive and backup purposes, consistent with your standard software backup procedures.

3. Conditions

3.1 General Use.   You may review, read, analyse, install, copy and Use the Software and you may reproduce the Software for archive and backup purposes, consistent with your standard software backup procedures. You may not modify, distribute, reverse engineer, reverse-assemble or reverse-compile any portion of the Software, or derive the Source Code of the Software licensed to you in Object Code format.

3.2 Incorporation of Third Party Software.  The Software may contain or be derived from materials of third party licensors. Such third party licensors are also the intended beneficiaries of this Agreement. Third party software may be subject to restrictions in addition to those listed in this Agreement, which restrictions, if any, are set forth in Spectrum's acknowledgement of your purchase order.

3.3 Run-Time Component Restrictions. You shall not list or quote a Run-Time Component as a separately priced item or option to End Users. You are authorized to configure the Run-Time Component within the Target Application so that the Run-Time Component will not operate apart from the operation of the Target Application.

3.4 Requirements for End-User License Agreements.   You shall take all steps necessary to protect Spectrum's and its licensors' proprietary rights in the Software and to ensure that any Software embedded in the Target Application distributed by you will be accompanied by an End User License Agreement. Such End User License Agreement shall prohibit the End User from: (i) copying the Software, except for archive purposes consistent with the End User's archive procedures; (ii) modifying, decompiling, disassembling, reverse engineering or otherwise attempting to derive the Source Code of the Software; (iii) exporting the Software or underlying technology in contravention of all applicable export control laws and regulations; and (iv) using the Software other than in connection with operation of the Target Application. In addition, the End User License Agreement shall: (i) state that the Software is licensed, not sold, is Commercial Computer Software as that term is defined at 48 C.F.R. §2.101 (United States of America), and that Spectrum and its licensors retain ownership of all copies of the Software; (ii) expressly disclaim all implied warranties, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; (iii) exclude liability for any special, indirect, punitive, incidental and consequential damages; and (iv) require that any further distribution of the Software be subject to the same restrictions set forth herein. The End User License Agreement shall also state that, with respect to the Software, Spectrum and its licensors are third party beneficiaries of the End User License Agreement and that the provisions related to the Software are made expressly for the benefit of, and are enforceable by, Spectrum and its licensors.

4. Intellectual Property Ownership, Copyright Protection.   The Software and any authorized copies that you make are the intellectual property of and are owned by Spectrum. The structure, organization and code of the Software are the valuable trade secrets and confidential and proprietary information of Spectrum. The Software is protected by law, including without limitation the copyright laws of Canada, the United States of America and other countries, by the Uniform Trade Secrets Act of the United States of America, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Spectrum.

5. Upgrades.   If the Software is an Upgrade to a previous version of the Software, you must possess a valid license to such previous version in order to Use such Upgrade. All Upgrades are provided to you on a license exchange basis.

6. No Warranty and No Additional Services Implied.   The Software is being delivered to you "AS IS" and Spectrum makes no warranty as to its use or performance. Spectrum does not and cannot warrant the performance or results you may obtain by using the Software except for any warranty, condition, representation or terms to the extent to which the same cannot or may not be excluded or limited by law applicable to you in your jurisdiction. Spectrum makes no warranties, conditions, representations, or terms (express or implied whether by statute, common law, custom, usage or otherwise) as to any matter including without limitation non-infringement of third party rights, merchantability, integration, satisfactory quality, or fitness for any particular purpose. You agree that there are to be no programming or any other services to be provided under this Agreement by Spectrum in relation to the Software being licensed, including, without limitation, any services in relation to any errors, malfunctions or defects which may arise during the term of this Agreement, except where these service are rendered through any further agreement between the parties and, in that case, at a price to be agreed upon at the time the further agreement may be entered into.

7. Limitation of Liability and Indemnity.   In no event will Spectrum be liable to you for any damages, claims or costs whatsoever or any consequential, indirect, incidental damages, or any lost profits or lost savings, even if Spectrum has been advised of the possibility of such loss, damages, claims, or costs. Spectrum's total liability in connection with this Agreement shall be limited to the license fee paid for the Software. Spectrum will defend and indemnify you from and against any losses, costs or damages arising from any claims brought by third parties against you insofar as such claims assert that the Software infringes a patent, trade secret or copyright. However, Spectrum shall have no liability to you, and you will indemnify and hold Spectrum harmless from, any expenses, damages, costs or losses resulting from, or with respect to, any proceeding or claim based on the infringement of any patent, copyright or trade secret to the extent the proceeding or claim is based upon: (i) the combination, use, or operation of the Software in connection or combination with any equipment, devised or software not delivered by Spectrum, if such infringement would have been avoided in the absence of such combination; or (ii) the modification by you or any third party of the Software; or (iii) your technology, or compliance by Spectrum with specifications provided by you; or (iv) use of the Software, or any part of the Software in the practice of a process; or (v) compliance by Spectrum with ITU or IEEE standards; or (vi) the failure to use materials or instructions provided by Spectrum which would have rendered the Software non-infringing.

8. Export Rules.   You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the Canadian Controlled Goods Act, the United States Export Administration Act or any other export laws, restrictions or regulations of Canada or the United States of America (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

9. Governing Law.  This Agreement will be governed by and construed in accordance with the substantive laws in force in the Province of British Columbia, Canada. The respective courts of Vancouver, British Columbia, Canada will apply. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10. Termination of License.   Spectrum may terminate this Agreement, and your rights hereunder, immediately upon written notice for your breach of a material obligation which material breach has remained uncured for a period of thirty (30) days from the date of delivery of written notice. Upon termination, you shall: (i) not use the Software for any purpose whatsoever; (ii) immediately destroy or return to spectrum all Software, Documentation, and any derivatives thereof; (iii) cease the reproduction and distribution of the Target Application; and (iv) promptly certify to Spectrum that you have complied with the foregoing. These remedies shall be cumulative and in addition to any other remedies available to Spectrum, including without limitation, the right to obtain an injunction. The provisions of paragraphs 6, 7 and 8, including any payment of fees obligations, shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Software after termination of this Agreement.

11. General Provisions.   If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement may not be modified except in writing signed by an authorized officer of Spectrum. Upgrades may be licensed to you by Spectrum with additional or different terms. This is the entire agreement between Spectrum and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.

12. Notice to U.S. Government End Users. The Software and Documentation are "Commercial Items," 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, Use, duplication or disclosure by the U.S. Government or any person or entity acting on its behalf is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software Clause at DFARS (48 CFR 252.227-7013) for Department of Defence contracts, in paragraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause in the FAR (48 CFR 52.227-19) for civilian agencies, or in the case of NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR, or in other comparable agency clauses. The Commercial Computer Software Documentation and Technical Data are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. For U.S. Government End Users, Spectrum agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.

13. Compliance with Licenses. If you are a business or organization, you agree that upon request from Spectrum you will within thirty (30) days of such request fully document and certify that your Use of the Software is in conformity with your valid license from Spectrum.

Vecima Networks Inc.
Doc: 500-00363 ver: 2.61