SOFTWARE DOWNLOAD LICENSE AGREEMENT

This Software Download License Agreement (the “Agreement”), by and between BCM Advanced Research., a California corporation having its registered address at 11 Chrysler, Irvine, CA 92618 (“BCM”) and you (“Licensee”) becomes effective as of the date you click the “Accept” button. If you are accepting on behalf of Licensee, you represent and warrant that: (a) you have full legal authority to bind your employer or such entity to these terms and conditions; (b) you have read and understood this Agreement; and (c) you agreed, on behalf of the entity that you represent, to this Agreement. If you do not have the foregoing legal authority, please do not click the “Accept” button.

1. DEFINITIONS

a. “Licensed Software Product” means the software in binary code form, its bug fixes, patches, modifications together or subsequently provided by BCM and downloaded directly from the web pages available at the domain of BCM, www.bcmcom.com, after your acceptance of this Agreement. Licensed Software Product shall not include Open Source Materials or Third Party Materials, and shall exclude any software acquired from sources other than Web Pages or without acceptance of this Agreement.

b. “Licensed Platform” means system(s) or hardware platform(s) manufactured by BCM regardless of the brand of the Licensed Platform, that Licensed Software Product is licensed to be used on or with.

c. “Documentation” means the specifications of Licensed Software Product and any other documentation provided by BCM to Licensee relating to Licensed Software Product, either in hardcopy or electronic form.

d. “Confidential Information” means any non-public information disclosed by BCM to Licensee, which is: (a) marked or labeled with “Confidential” or similar legends if the information is in written or other tangible forms; (b) designated by BCM as Confidential Information before disclosure and confirmed by written summary within 30 days after disclosure if the information is in oral, visual or other intangible forms; (c) obviously confidential by its nature or the circumstances surrounding the disclosure regardless of whether the information is marked or otherwise identified as confidential; or (d) any other information constituting trade secret under applicable laws. Confidential Information shall include, without limitation, the binary code and source code of Licensed Software Product, Documentation, and BCM’s reference designs. Any work products, analysis or report containing Confidential Information or generated by using Confidential Information, any modification to Confidential Information, or any derivative works of Confidential Information shall be considered as Confidential Information.

e. "Open Source Software" means any software which
(i) contains or is derived in any manner (in whole or in part) from, any software which is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following license or distribution models, or licenses or distribution models similar to GNU's General Public License (GPL) or Lesser/Library GPL (LGPL), Artistic License (e.g., PERL), Netscape Public License, Mozilla Public License, Apache License, or BSD License.
(ii) is distributed pursuant to a license that requires, as a condition of use, modification and/or distribution of such software, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.

f. “Third Party Software” means any software provided by a third party to BCM under license terms and conditions.

2. LICENSE

a. BCM hereby grants Licensee a worldwide, revocable, non-exclusive, non-transferable license to use Licensed Software Product on or with Licensed Platform, and to distribute Licensed Software Product to its customer of Licensed Platform for being used on or with Licensed Platform only.

b. In no event shall Licensed Software Product be used on or with any product other than Licensed Platform.

c. Licensee shall be responsible for its customers’ compliance with provisions with regard to Licensee’s obligations under this Agreement to the applicable extent.

3. SUPPORT

a. Support for Licensed Software Product provided by BCM to Licensee shall be defined by a Service Level Agreement between the parties.

4. RESTRICTIONS

a. The source code of Licensed Software Product is highly confidential and proprietary to BCM; Licensee shall have no right to access or use such source code. Licensee shall not cause or permit modification, creating derivative works, duplicating, disassembling, decompiling or reverse engineering decryption, or otherwise of or to Licensed Software Product or otherwise attempt to discover the source code of Licensed Software Product or Documentation.

b. Except as expressly provided in Article 2, Licensee shall not sell, license, rent, lend, distribute or otherwise transfer Licensed Software Product or Documentation.

c. Licensee shall not take any action that will create obligations conflicting with Licensee’s obligations hereunder, including without limitation, creating derivative work of Licensed Software Product that contains any code licensed under an Open Source Software license, or using Licensed Software Product or derivative work thereof to merge with, link to, make function calls to, or share data structures with software available under an Open Source Software license.

5. OPEN SOURCE SOFTWARE & THIRD PARTY SOFTWARE

a. Licensee acknowledges that Licensed Software Product may incorporate certain Open Source Software or Third Party Software

b. Any portion of Licensed Software Product which constitutes Open Source Software or Third Party Software is licensed to Licensee subject to the license terms and conditions of such Open Source Software or Third Party Software, whether in the form of a separate agreement, shrink wrap license or electronic license terms accepted at the time of download.

c. Licensee’s use of the Open Source Software or Third Party Software shall be governed entirely by the license terms and condition of such software.

d. In no event shall the performance of this Agreement by Licensee violate any applicable license terms and condition of such software. In the event of any inconsistency between this Agreement and the license terms and conditions of Open Source Software or Third Party Software, this Agreement shall not apply to the Open Source Software or Third Party Software.

6. LICENSE FEE AND PAYMENT TERM

a. BCM provides Licensed Software Product to Licensee free of charge. Notwithstanding the foregoing, the parties may negotiate and define license fees and payment term for Licensed Software Product and Documentation in a separate agreement.

b. Licensee shall be responsible for all taxes, levies and regulatory fees of any kind arising from the license fee payment or the use of Licensed Software Product or Documentation, other than taxes based solely upon licensor’s income.

7. CONFIDENTIALITY

a. Licensee shall hold all Confidential Information in confidence for an indefinite period and use it only for the permitted purpose set forth in this Agreement.

b. Licensee shall protect the Confidential Information with the same degree of care which Licensee protects its own information of secret nature, which shall not be less than the reasonable degree of care.

c. Licensee may disclose the Confidential Information only to (1) its employees who have a need to know, or (2) its customers of Licensed Platforms. Prior to any such disclosure, Licensee must have a written and appropriate confidentiality agreement with such employees or customers to protect the confidentiality of Confidential Information.

d. If a confidentiality agreement with regard to the Confidential Information between BCM and Licensee conflicts with this Article 7, such confidentiality agreement shall prevail, unless this Article 7 is stringent than the confidentiality agreement.

8. INTELLECTUAL PROPERTY RIGHTS

a. BCM shall own the rights (including intellectual property rights), titles, interests in Licensed Software Product, Documentation, modification to Licensed Software Product or Documentation, and derivative work, analysis or report which containing or generated by Licensed Software Product or Documentation.

b. Except as expressly provided for in this Agreement, BCM does not grant any right to Licensee. BCM reserves all rights in Licensed Software Product not specifically granted hereunder.

c. Licensee shall not remove or obscure any copyright, patent, trademark, confidentiality, restricted or limited rights, export restriction or similar notice affixed to Licensed Software Product or Documentation.

9. LIMITATION OF LIABILITY

a. IN NO EVENT SHALL BCM OR ITS AFFILIATES OR SUPPLIERS BE HELD LIABLE FOR ANY (I) LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES, LOSS OF USE, DESTRUCTION OF DATA OR INTERRUPTION OF BUSINESS ARISING FROM OR IN CONNECTION WITH LICENSED SOFTWARE PRODUCT OR DOCUMENTATION; (II) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR MULTIPLE DAMAGES ARISING FROM OR IN CONNECTION WITH LICENSED SOFTWARE PRODUCT OR DOCUMENTATION EVEN IF BCM HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; OR (III) LIABILITY EXCEEDING US$999.00.

10. DISCLAIMER

a. BCM PROVIDES LICENSED SOFTWARE PRODUCT AND DOCUMENTATION “AS IS", WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BCM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO LICENSED SOFTWARE PRODUCT OR DOCUMENTATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, ERROR-FREE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IF BCM CANNOT DISCLAIM ANY WARRANTY AS A MATTER OF ANY APPLICABLE LAW, BCM’S WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

b. ALL USE OF AND RELIANCE ON LICENSED SOFTWARE PRODUCT OR DOCUMENTATION IS AT THE SOLE RISK AND RESPONSIBILITY OF LICENSEE.

11. PROHIBITED USE

a. Licensed Software Product, Documentation and Licensed Platform should not be used for any life-saving, life support, medical or other application where product failure may lead to loss of life or catastrophic property damage.

b. Licensee shall assure that Licensed Software Product, Documentation and Licensed Platform provided by BCM will not be transferred or used for any known end use relating to nuclear, chemical or biological weapons, or missile technology.

c. Licensee shall indemnify, defend and hold BCM and its licensor, if applicable, harmless from any loss, cost or damage resulting from Licensee’s breach of this Agreement, including without limitation attorneys’ fees and costs relating to any lawsuit or threatened lawsuit.

12. TERMINATION

a. Each Party may terminate this Agreement if the other party (i) fails to cure its breach of this Agreement within fifteen (15) days after receipt of the non-breaching party’s written notice, (ii) commits a material breach of this Agreement, or (iii) is in a critical financial situation (such as in an insolvency, receivership or bankruptcy proceedings, making an assignment for the benefit of creditors) or dissolves or ceases to do business.

b. Upon termination of this Agreement, Licensee shall immediately cease to use Licensed Software Product, return or destroy any copy of Licensed Software Product, Documentation and Confidential Information, in its possession or control.

c. Notwithstanding the foregoing, Articles 1, 2.b, 2.c, 5, 6.b, 7-11, 12.c, 13-16 shall survive any expiration or termination of this Agreement. Expiration or termination of this Agreement does not affect either party's rights accrued and obligations incurred before expiration or termination.

13. ENTIRE AGREEMENT

a. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior oral or written agreements, representations and understanding.

14. GOVERNING LAW AND JURISDICTION

a. This Agreement shall be governed by and construed in accordance with the laws of California.

15. EXPORT COMPLIANCE

a. Licensee shall not export, import or transfer Licensed Software Product and Documentation to any country or end user, or for any known end use, that is prohibited by any applicable laws or regulations (including those countries from time to time subject to embargo by U.S.A., European Union or Taiwan government authorities).

b. Licensee shall assure that Licensed Software Product and Documentation will not be exported, imported, transferred or used contrary to applicable laws or regulations of any other governmental authority that has jurisdiction over such export, import, transfer or use.

16. MISCELLANEOUS

a. Neither party shall be held liable for nonperformance of this Agreement when it is caused by events or circumstances beyond the control of that party, for so long as the events or circumstances are continuing.

b. Amendment or modification of this Agreement shall be made in writing by the parties.

c. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns; provided, however, that Licensee shall have no right to assign this Agreement or delegate its obligations hereunder without obtaining BCM’s prior written consent.

d. Failure by BCM to enforce any provision of this Agreement shall not constitute waiver of or estoppel with respect to BCM’s any right or remedy hereunder.

e. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

f. The heading of article herein is solely for convenience of reference only; in no event shall it control the meaning or interpretation of any provision of this Agreement.