9. LIMITED WARRANTY.

9.1 Limited Warranty. Wind River warrants that the media on which the Software is delivered will be free from defects in materials or workmanship for a period of ninety (90) days from the date of shipment of such media to Customer ("Warranty Period").  If during the Warranty Period the media on which Software is delivered proves to be defective, Wind River will repair or replace such media, at Wind River's option, as Customer's sole remedy for any breach of warranty hereunder. Customer assumes full responsibility for: (i) the selection of the Software; (ii) the proper installation and use of the Software; (iii) verifying the results obtained from the use of the Software; and (iv) taking appropriate measures to prevent loss of data.  Wind River does not warrant that the quality or performance of the Software will meet Customer's requirements or that Customer will be able to achieve any particular results from use or modification of the Software or that the Software will operate free from error.

9.2 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, WIND RIVER AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WIND RIVER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. Some jurisdictions do not allow the limitation or exclusion of implied warranties or how long an implied warranty may last, so the above limitations may not apply to Customer. This warranty gives Customer specific legal rights and Customer may have other rights that vary from jurisdiction to jurisdiction.

10. SUPPORT. The Software license fees do not include support, installation or training. Installation and training services, to the extent offered by Wind River, may be separately purchased at Wind River's then-current rates. Customer may request additional information on Wind River's support offerings from a Wind River sales representative. 

11. INFRINGEMENT INDEMNITY.  Wind River will defend and indemnify Customer from and against any losses, costs or damages arising from any claims brought by third parties against Customer insofar as such claims assert that the Software, as provided to Customer, infringes a previously issued patent, trade secret or copyright, provided that Wind River is notified promptly of such claim and is given full and complete authority (including settlement authority), information and assistance by Customer for such defense.  In the event that the Software is held in any such suit to infringe such a right and its use is enjoined, or if in the opinion of Wind River the Software is likely to become the subject of such a claim, Wind River at its own election and expense will either (i) procure for Customer the right to continue using the Software or (ii) modify or replace the Software so that it becomes non-infringing while giving substantially equivalent performance. In the event that (i) or (ii) above are not, in Wind River's sole determination, obtainable using reasonable commercial efforts, then Wind River may terminate this Agreement and refund amount Customer paid Wind River under this Agreement for the Software which is the subject of such claim, less a reasonable charge for Customer's past beneficial use based on depreciation of the Software on a straight line basis over a period of three (3) years from the Effective Date.  The indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) modifications made to the Software by a party other than Wind River; (ii) the combination of the Software with items not supplied by Wind River; and (iii) Customer's failure to use the most recent version of the Software provided by Wind River to Customer. THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND WIND RIVER'S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.

12. CUSTOMER INDEMNITY.  Customer will defend at its expense and indemnify Wind River from and against any losses, costs or damages resulting from or in connection with any claims by third parties resulting from or in connection with the use, manufacture, or distribution of Target Applications by Customer and Customer's direct and indirect End Users in any country, provided that Wind River gives Customer prompt written notice of any such claim, tenders to Customer the defense or settlement of any such claim at Customer's expense, and cooperates with Customer, at Customer's expense, in defending or settling such claim.  This indemnification obligation shall not apply to infringement actions or claims if such actions or claims are based solely on the use of the Software in the form provided by Wind River.

13. LIMITATION OF LIABILITY. WIND RIVER AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WIND RIVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WIND RIVER'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO WIND RIVER BY CUSTOMER PURSUANT TO THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so this limitation and exclusion may not apply to Customer.
THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WIND RIVER AND CUSTOMER. WIND RIVER WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS.

14. U.S. GOVERNMENT END USERS.  The Software is a "commercial item" 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.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, Customer will provide the Software to U.S. Government End Users only pursuant to the terms and conditions therein.

15. GOVERNING LAW AND FORUM. This Agreement shall be governed in all respects by the laws of the United States of America and the State of New York without regard to conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

15.1   Customers in North America.  If Customer's principal place of business is in North America, all disputes arising under this Agreement shall be brought exclusively in Superior Court of the State of California in Santa Clara County or the U.S. District Court for the Northern District of California in San Francisco, California, as permitted by law. Customer consents to the personal jurisdiction of the above courts.  

15.2   Customers Outside of North America.  If Customer's principal place of business is outside North America, all disputes arising under this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by three arbitrators. Each party shall appoint one neutral arbitrator. The two arbitrators so appointed shall appoint the presiding arbitrator, who also shall be neutral, from a roster of arbitrators familiar with intellectual property disputes. If the two arbitrators to be appointed by the parties fail to agree upon a third arbitrator within fourteen (14) days of the appointment of the second arbitrator, the third arbitrator shall be appointed by the ICC from a roster of arbitrators familiar with intellectual property disputes. The arbitration procedure shall be conducted in the English language. Unless otherwise directed by the Arbitrators, the parties are limited to a single discovery request and response and may notice no more than five (5) depositions per party. Hearings shall be scheduled not later than sixty (60) days after receipt of the complainant and respondent's materials. Any such hearing shall be concluded, and a final award rendered, within ninety (90) days from the commencement of the hearing.

15.3 Site of Arbitration.  The arbitration proceeding set forth in Section 15.3 shall be conducted in London, United Kingdom, if Customer's principal place of business is in Europe, the Middle East, or Africa, and in Honolulu, Hawaii, if Customer's principal place of business is elsewhere outside North America.

16. GENERAL. Customer shall not export or reexport the Software in violation of the export control laws of the United States and/or any other jurisdiction. If any legal action or proceeding is brought for the enforcement of this Agreement, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which such party may be entitled.  This Agreement may not be assigned, sub-licensed, or otherwise transferred (including by way of a merger) by Customer without Wind River's prior written consent. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties.  In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.  This Agreement constitutes the complete, final and exclusive statement of the agreement between Wind River and Customer, which supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. No waiver, alteration or modification of the provisions of this Agreement will be valid unless made in writing and signed by a corporate officer of Wind River. The terms and conditions of any Purchase Order or other instrument issued by Customer in connection with this Agreement which add to or differ from the terms and conditions of this Agreement (other than terms specifying the Approved CPU, Authorized Site, Wind River product desired, number of Tools users, and description of the Project) shall be of no force or effect.
Should you have any questions concerning this Agreement, please write: Wind River Systems, Inc., Vice President, Intellectual Property and Legal Affairs, 500 Wind River Way, Alameda, CA 94501.

Additional Third Party Licensor Terms (if any):

THE SOFTWARE AND ACCOMPANYING DOCUMENTATION ARE PROTECTED BY UNITED STATES INTELLECTUAL PROPERTY LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.


BY CLICKING ON THE "ACCEPT" BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.


Object Code License and Distribution Agreement
Wind River Systems, Inc.
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