IMPORTANT NOTICE - READ CAREFULLY: This license is the agreement which governs use of the firmware installer tool and firmware, including computer software and associated materials (collectively, "SOFTWARE") provided by Mellanox Technologies, Ltd. ("NVIDIA Mellanox"). By downloading, installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this license. IF YOU ARE ENTERING INTO THIS LICENSE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS LICENSE, IN WHICH CASE "YOU" WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON'T HAVE SUCH AUTHORITY, OR IF YOU DON'T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE, THEN NVIDIA Mellanox DOES NOT AGREE TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE IT.
1. License
Subject to the terms of this license, NVIDIA Mellanox hereby grants you a non-exclusive, non-transferable license, without the right to sublicense (except as expressly permitted below), during the term of this license, to: (a) install and use the installer software tool in any computer, server or system, (b) flash the firmware provided into compatible NVIDIA adapter products including all ConnectX and BlueField adapters, and (c) use any documentation provided by NVIDIA Mellanox.
You may allow employees of your subsidiary(ies) and your product(s) original design manufacturers to access and use the SOFTWARE pursuant to the terms of this license solely to perform work on your behalf, provided that you are responsible for the compliance with the terms and conditions of this license by your authorized users.
NVIDIA Mellanox reserves all rights, title, and interest in and to the SOFTWARE not expressly granted to you under this license.
2. Limitations
The firmware is licensed only for use with adapter products which have been (i) designed by NVIDIA Mellanox and/or its affiliates and (ii) sold (directly or indirectly) by NVIDIA Mellanox and/or its affiliates. You shall not use firmware in conjunction with, nor cause the firmware to be executed by, any other adapter product. You shall not translate firmware, nor cause or permit firmware to be translated, from the architecture or language in which it is originally provided by NVIDIA Mellanox, into any other architecture or language.
Your license to use the SOFTWARE is restricted as follows:
a. You may not reverse engineer, decompile or disassemble, or remove copyright or other proprietary notices from any portion of the SOFTWARE or copies of the SOFTWARE.
b. Except as provided in this license, you may not modify or create derivative works of any portion of the SOFTWARE.
c. Except as provided in this license, you may not sell, rent, sublicense, transfer or distribute the SOFTWARE.
d. You may not disclose results of benchmarking or other competitive analysis or regression or performance data relating to the SOFTWARE.
e. You may not bypass, disable, or circumvent any measures that control access, encryption, security, digital rights management, or authentication mechanism in the SOFTWARE.
f. You may not use the SOFTWARE in any manner that would cause it to become subject to an open source software license. As examples, licenses that require as a condition of use, modification, and/or distribution that the SOFTWARE be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
3. Components Under Other Licenses
The SOFTWARE may include NVIDIA Mellanox or third-party components with separate legal notices or terms as may be described in proprietary notices accompanying the SOFTWARE, such as components governed by open source software licenses. If and to the extent there is a conflict between the terms in this license and the license terms associated with a component, the license terms associated with the components control only to the extent necessary to resolve the conflict.
4. Pre-Release
SOFTWARE versions identified as alpha, beta, preview, early access or otherwise as pre-release may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, availability, and reliability standards relative to commercial versions of NVIDIA Mellanox software and materials. You may use a pre-release SOFTWARE version at your own risk, understanding that these versions are not intended for use in production or business-critical systems.
5. Ownership
The SOFTWARE and the related intellectual property rights therein are and will remain the sole and exclusive property of NVIDIA Mellanox or its licensors. The SOFTWARE is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. NVIDIA Mellanox may make changes to the SOFTWARE, at any time without notice, but is not obligated to support or update the SOFTWARE.
6. Feedback
You may, but don't have to, provide to NVIDIA Mellanox Feedback. "Feedback" means any suggestions, bug fixes, enhancements, modifications, feature requests or other feedback regarding the SOFTWARE. For any Feedback that you voluntarily provide, you hereby grant NVIDIA Mellanox and its affiliates a perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense (through multiple tiers of sublicensees), and distribute (through multiple tiers of distributors) the Feedback without the payment of any royalties or fees to you. NVIDIA Mellanox will use feedback at its choice.
7. No Warranties
THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NVIDIA Mellanox DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NVIDIA Mellanox does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE.
8. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA MELLANOX AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, PROJECT DELAYS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF NVIDIA MELLANOX HAS PREVIOUSLY BEEN ADVISED OF, OR COULD REASONABLY HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NVIDIA MELLANOX AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS LICENSE EXCEED US$10.00. THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
9. Term and Termination
Your rights under this license will terminate automatically without notice from NVIDIA Mellanox if you fail to comply with any term of this license or if you commence or participate in any legal proceeding against NVIDIA Mellanox with respect to the SOFTWARE. Additionally, NVIDIA Mellanox may terminate this license upon 30 days written notice to you. Upon any termination of this license, you agree to promptly discontinue use of the SOFTWARE and destroy all copies in your possession or control. All provisions of this license will survive termination, except for the license granted to you.
10. Applicable Law
This license will be governed in all respects by the laws of the United States and of the State of Delaware as those laws are applied to contracts entered into and performed entirely within Delaware by Delaware residents, without regard to the conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. You agree to all terms of this license in the English language. The state or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this license. Notwithstanding this, you agree that NVIDIA Mellanox shall still be allowed to apply for injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction.
11. No Assignment
This license and your rights and obligations thereunder may not be assigned by you by any means or operation of law without NVIDIA Mellanox's permission. Any attempted assignment not approved by NVIDIA Mellanox in writing shall be void and of no effect.
12. Export
The SOFTWARE is subject to United States export laws and regulations. You agree that you will not ship, transfer or export the SOFTWARE into any country, or use the SOFTWARE in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC), or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. By accepting this license, you confirm that you are not a resident or citizen of any country currently embargoed by the U.S. and that you are not otherwise prohibited from receiving the SOFTWARE.
13. Government Use
The SOFTWARE is, and shall be treated as being, "Commercial Items" as that term is defined at 48 CFR § 2.101, consisting of "commercial computer software" and "commercial computer software documentation", respectively, as such terms are used in, respectively, 48 CFR § 12.212 and 48 CFR §§ 227.7202 & 252.227-7014(a)(1). Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this license pursuant to 48 CFR § 12.212 or 48 CFR § 227.7202. In no event shall the US Government Customer acquire rights in the SOFTWARE beyond those specified in 48 C.F.R. 52.227-19(b)(1)-(2).
14. Entire Agreement
This license is the final, complete, and exclusive agreement between the parties relating to the subject matter of this license and supersedes all prior or contemporaneous understandings and agreements relating to this subject matter, whether oral or written. If any court of competent jurisdiction determines that any provision of this license is illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect. This license may only be modified in a writing signed by an authorized representative of each party.
(v. August 31, 2021)
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