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RADISYS CORPORATION EMBEDDED NETWORK PROCESSOR SOFTWARE DEVELOPMENT KIT LICENSE PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE INCLUDED ON THIS CD. BY INSTALLING OR USING THE SOFTWARE, YOU ("Licensee") INDICATE THAT YOU ACCEPT THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU SHOULD NOT INSTALL OR USE THE SOFTWARE BUT SHOULD PROMPTLY RETURN THE SOFTWARE TO RADISYS CORPORATION ("RadiSys"). 1. DEFINITIONS 1.1 "Software" means the entire Embedded Network Processor Software Development Kit, any modifications, new versions or updates thereto provided by RadiSys, the documentation and any other material provided by RadiSys for use with such software. The Linux operating system, if included as part of the Software Development Kit, is excluded from the definition of Software and is not subject to this Agreement. 1.2 "Product" means an integrated circuit implementing the Intel IXP1200 or IXP2400 architecture and utilizing some or all of the Software. 2. LICENSE 2.1 Software License. Subject to the terms of this Agreement, RadiSys hereby grants to Licensee a worldwide, royalty-free, non-exclusive, non-transferable, non-sublicensable limited license to use, reproduce or have reproduced, and distribute the Software. Licensee may also modify and prepare derivative works of the Software in order to correct errors or enhance performance ("Derivative Works"). 2.2 Restrictions. Licensee will not distribute any portion of the Software or Derivative Works in source code format to any third party. Licensee may not remove or alter any proprietary rights notices of RadiSys or its licensors in the Software. Licensee may distribute the Software or Derivative Works solely: (a) in object code form; (b) to end users, either directly or through its channels of distribution; and (c) functionally integrated into a Product. 2.3 Updates and Support. RadiSys may, but is not obligated to, provide Licensee with updates and new versions of the Software. Licensee may request, but RadiSys is not obligated to provide, maintenance and support services in connection with the Software. If RadiSys agrees to provide such services, RadiSys may charge a fee for such services at its sole discretion. 2.4 No Other Licenses. Neither this Agreement nor the distribution of Products containing the Software shall be deemed to give Licensee any right to use RadiSys' trademarks or any of RadiSys' trade names without RadiSys' specific written consent. No license, immunity or other right is granted herein to Licensee whether directly or by implication, estoppel or otherwise with respect to any patent, trademark, copyright, maskwork, trade secret or other intellectual property right of RadiSys, except as expressly provided herein. 3. END USER LICENSE AGREEMENTS Licensee shall take all steps necessary to protect RadiSys' and its licensors' proprietary rights in the Software and to ensure that each Product distributed by Licensee will be accompanied by an End User License Agreement. Such End User License Agreement shall prohibit the end user from: (a) copying the Software, except for archive purposes consistent with the end user's archive procedures; (b) transferring the Software to a third party apart from the Product; (c) modifying, decompiling, disassembling, reverse engineering or otherwise attempting to derive the source code of the Software; (d) exporting the Software or underlying technology in contravention of applicable U.S. and foreign export laws and regulations; and (e) using the Software other than in connection with operation of the Product. In addition, the End User License Agreement shall: (i) state that the Software is licensed, not sold and that Licensee 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, RadiSys 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, RadiSys and its licensors. 4. WARRANTY DISCLAIMER THE SOFTWARE IS SUPPLIED "AS IS" AND WITH ALL FAULTS. RADISYS 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 RADISYS, 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 Licensee. This warranty gives Licensee specific legal rights and Licensee may have other rights that vary from jurisdiction to jurisdiction. 5. INDEMNITY Licensee agrees to indemnify, defend and hold harmless RadiSys, its shareholders, directors, officers, employees, agents and affiliated companies from and against any losses, costs, or damages (including reasonable attorneys' fees) resulting from or in connection with any claims by third parties resulting from or in connection with (a) the use, manufacture or distribution of Products by Licensee and Licensee's direct and indirect end users in any country or (b) any failure of Licensee to include or enforce the provisions of Section 3 above, provided that RadiSys gives Licensee prompt written notice of any such claim, tenders to Licensee the defense or settlement of any such claim at Licensee's expense, and cooperates with Licensee, at Licensee'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 RadiSys. 6. LIMITATION OF LIABILITY RADISYS 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 RADISYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL RADISYS' AGGREGATE CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE EXCEED THE AMOUNTS PAID TO RADISYS BY LICENSEE PURSUANT TO THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so this limitations and exclusion may not apply to Licensee. THE WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RADISYS AND LICENSEE. RADISYS WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS. 7. CONFIDENTIAL INFORMATION 7.1 Restrictions on Use. It may be necessary during the performance of this Agreement for the parties to exchange proprietary or confidential information ("Confidential Information"). Each party agrees to use the same degree of care to protect the confidentiality of the Confidential Information and to prevent its unauthorized use or dissemination as it uses to protect its own confidential information of a similar nature, provided that the information is marked in writing as "Confidential" or, if disclosed orally, the information is identified as confidential at the time of disclosure and is summarized in a writing, marked confidential, and delivered to the other party within thirty (30) days after the date of disclosure. Each party agrees to use the Confidential Information only for purposes related to the performance of this Agreement. All Confidential Information remains the property of the party disclosing the information, and, except for the license expressly granted under this Agreement, no license or other rights to Confidential Information is granted or implied hereby. 7.2 Exceptions. Neither party will be liable for disclosure of any information received under this Agreement which: (a) is generally known or available by publication, commercial use, or otherwise; (b) is known by the receiving party through no wrongdoing and is not subject to restriction at the time of disclosure; (c) is independently developed by the receiving party without the use of Confidential Information; or (d) is lawfully obtained from a third party without violation of a confidentiality obligation to the disclosing party. 7.3 Source Code. Licensee agrees that the Software contains confidential and proprietary information of RadiSys developed by RadiSys at substantial cost and expense and shall be treated as RadiSys Confidential Information. Licensee shall secure and protect and shall make and keep only the minimum number of copies of any source code provided hereunder as may be required for technical or archival reasons, and will ensure that each copy is marked with a clearly legible confidentiality notice. Licensee shall employ reasonable precautions, at least as protective as the precautions it uses to protect its own confidential information, to protect the Software from unauthorized copying, use, or disclosure and use the Software solely for the purposes for which it was disclosed or otherwise for the benefit of RadiSys. Licensee shall allow access to the Software only to employees and contractors of Licensee who are performing services for Licensee related to the purposes of the Agreement, who have a need to know information contained in the Software, and upon whom Licensee has imposed a legal duty to protect the Software from unauthorized copying, use or disclosure consistent with the terms of this Agreement. Licensee agrees to use all commercially reasonable efforts to assist RadiSys to prevent, prosecute and enjoin any actual or threatened unauthorized copying, use or disclosure of the Software. Licensee may disclose the Software to the extent required by law. However, Licensee will give RadiSys prompt written notice to allow RadiSys a reasonable opportunity to obtain a protective order. 7.4 No Decompiling. Licensee agrees that it will not disassemble, decompile or otherwise attempt to reverse engineer any Software provided in binary form. 8. TERMINATION Licensee may terminate this Agreement at any time upon written notice to RadiSys. RadiSys may terminate this Agreement immediately upon written notice for material breach of this Agreement by Licensee. Upon termination, Licensee shall: (a) not use the Software for any purpose whatsoever; (b) immediately destroy or return to RadiSys all material belonging to RadiSys or its licensors, including without limitation all Software and RadiSys confidential information then in Licensee's possession; (c) cease the reproduction and distribution of the Software; and (d) shall promptly certify to RadiSys that Licensee has done so. All Sections except Section 2 shall survive any termination of this Agreement. 9. GOVERNMENT END USERS The Software is a "commercial item" as that term is defined in 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, Licensee will provide the Software to U.S. Government End Users only pursuant to the terms and conditions therein. 10. EXPORT CONTROL All Software and technical information delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to strictly comply with all such laws and regulations. 11. GENERAL This Agreement shall be governed by the laws of the United States of America and the State of Oregon as applied to contracts entered into between residents of Oregon and performed entirely within the State. All disputes arising under this Agreement shall be brought exclusively in the state or federal courts of the State of Oregon. Both parties consent to the personal jurisdiction and venue of the above courts and waive any objections based upon location of the forum. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter. 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. Licensee may not assign or transfer this Agreement, or the rights and obligations created by this Agreement, without RadiSys' prior written consent. This Agreement constitutes the entire agreement between Licensee and RadiSys and supersedes in their entirety any and all oral or written agreements previously existing between Licensee and RadiSys with respect to the subject matter hereof. This Agreement may only be amended or supplemented by a writing that refers explicitly to this Agreement and that is signed by duly authorized representatives of Licensee and RadiSys. BY CLICKING "I AGREE", YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, YOU CANNOT DOWNLOAD THE SDK.
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