Infinera – END USER SOFTWARE LICENSE TERMS
1. Right to Use License; Restrictions.
Subject to these terms, the End User is hereby granted a personal, non-transferable, non-exclusive license, without right to sublicense, to use the copy and version of Infinera software and any documentation that is supplied therewith (the “Software”) for its own internal business purposes and in object form only. Each license is specific to the release and particular network element with which it is supplied. If End User wishes to use Infinera’s DNA software, End User must purchase a license to the DNA software together with the appropriate number of EMS licenses to access the EMS software. The license to use the Software does not include and the End User shall not, without Infinera’s prior written consent, (i) reproduce (except as expressly set forth herein), modify, translate or create any derivative work of all or any portion of the Software; (ii) sell, rent, lease, loan the Software or otherwise transfer the license granted hereunder; (iii) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of the Software, (iv) display or disclose the software to any third party other than persons employed by the End User who are using it on the End User’s behalf at the End User’s premises (v) use the software for third party training, commercial time sharing or service bureau use; (vi) remove, alter, cover or obfuscate any copyright notices, trademark notices or other proprietary rights notices placed or embedded on or in the Software; (vii) unbundle any components of the Software; (viii) remove any Software from any Infinera hardware in which it is embedded; or (ix) cause or permit any third party to do any of the foregoing. End User may make one copy of the Software solely for backup and archival purposes. End User will include on any copy of the Software it makes all markings, notices and legends affixed to or embedded in the Software. End User will maintain a record of the number and location of all copies of Software that it makes, and will make those records available to Infinera on request.
In the European Union countries, a software directive by the European Union Commission mandates that a licensee of software shall be lawfully entitled to decompile such software for the purpose of obtaining the information necessary to achieve the interoperability of an independently created computer program with other programs, provided, among other things, that such information has not previously been readily available, and such decompilation is confined to the parts of the licensed program which are necessary to achieve interoperability. End User acknowledges that Infinera makes such information available to End User, and that, accordingly, End User shall not claim or exercise any such right of decompilation. End User acknowledges and agrees that Infinera may terminate the license to use the Software in the event of any breach of these terms and conditions.
End User acknowledges that title to or ownership of the Software and the software documentation provided with the Software remain vested in Infinera or its suppliers and that the End User is only being granted a right of limited use. Title to any corrections, bug fixes, enhancements, modifications, updates, upgrades, new versions, derivative works and copies of the Software and documentation, and to any associated patents, trademarks, trade secrets, copyrights or other intellectual property rights, shall also vest in Infinera or its suppliers.
3. Third Party Software.
End User acknowledges and agrees that the Software may include certain third-party software and technology, including open source software and the software of Infinera suppliers, which is subject to additional terms set out in the applicable software documentation. Some suppliers are intended third-party beneficiaries of this license. Third-party-beneficiary suppliers include: (a) IP Infusion (ZebOS Software), (b) Wind River Systems, Inc. and its suppliers; (c) Oracle and (d) any other supplier Infinera identifies as a third-party beneficiary in the applicable software documentation or additional supplements. These suppliers may enforce and are express beneficiaries of this license. However, they are not in any contractual relationship with End User.
4. Warranty Disclaimer.
INFINERA MAKES NO OTHER WARRANTY TO THE END USER, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. INFINERA DOES NOT WARRANT THAT ANY EQUIPMENT, SOFTWARE, OR PART THEREOF WILL MEET END USER’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR-FREE, OR THAT ANY ERRORS IN THE EQUIPMENT OR THE SOFTWARE WILL BE CORRECTED. IN NO EVENT SHALL INFINERA BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATED SAVINGS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF END USER’S USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL INFINERA’S LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT PAID BY END USER FOR THE RESPECTIVE SOFTWARE LICENSE OR, IN THE CASE OF EMBEDDED SOFTWARE, THE EQUIPMENT IN WHICH IT IS EMBEDDED. NOTWITHSTANDING THE ABOVE, INFINERA DOES NOT EXCLUDE OR LIMIT ITS LIABILITY TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE NOT PERMITTED UNDER APPLICABLE LAW.
THE ABOVE WARRANTY DISCLAIMER IS WITHOUT PREJUDICE TO ANY WARRANTY THAT MAY BE PROVIDED BY THE AUTHORIZED RESELLER FROM WHOM THE END USER PURCHASES THE HARDWARE ON WHICH THE SOFTWARE IS EMBEDDED OR THE LICENSE FOR THE SOFTWARE. ANY WARRANTY PROVIDED BY THE AUTHORIZED RESELLER IS ONLY ENFORCEABLE AGAINST THE RESELLER, AND END USER ACKNOWLEDGES THAT THE AUTHORIZED RESELLER IS ACTING IN AN INDEPENDENT CAPACITY AND IS NOT ACTING AS AN AGENT OF INFINERA AND HAS NO AUTHORITY TO MAKE COMMITMENTS ON BEHALF OF INFINERA.
End User shall not disclose to any third party other than Infinera or the Infinera authorized reseller the Software documentation and any information relating to the operation, design, performance or implementation of the Software that is not in the public domain, other than to persons employed by the End User to allow them to use the Software installed at End User’s facility and on End User’s behalf in accordance with terms of this Agreement and provided they agree to maintain the confidentiality of the information.
6. Export Restrictions.
End User agrees not to export, re-export, transfer or allow third parties to access any Infinera products that it purchases or licenses where such export, re-export, transfer or access is not permitted under the applicable rules and regulations of the United States Government and agencies and of the European Union and its Member States.
7. US Government End Users.
This Agreement applies to the use of the Software and software documentation by or for the federal Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal Government (in either instance a “Government Customer”). By accepting delivery of the Software and software documentation, the Government Customer hereby agrees that the Software and related 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, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to Government Customers (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. If this Agreement fails to meet the Government Customer’s needs or is inconsistent in any respect with federal law, the Government Customer agrees to return the Software and software documentation, unused, to Infinera.