Mellanox HPC-X™ Scalable Software Toolkit End-User Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF THIS MELLANOX END USER LICENSE AGREEMENT (THIS “AGREEMENT”) BEFORE INSTALLING OR USING THE SOFTWARE PRODUCT. THE SOFTWARE PRODUCT IS THE MELLANOX MESSAGING PROPRIETARY SOFTWARE AND IS REFERRED TO HEREIN AS THE “SOFTWARE PRODUCT”. ACCESSING, INSTALLATION, OR USAGE OF THE SOFTWARE PRODUCT OR CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, INDICATES YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, AND CREATES A LEGAL AND BINDING AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND MELLANOX TECHNOLOGIES, LTD. AND/OR ITS SUBSIDIARIES (“MELLANOX”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHALL NOT USE OR COPY THIS SOFTWARE PRODUCT AND YOU MUST PROMPTLY RETURN THIS PACKAGE TO MELLANOX.
The Software Product is a comprehensive tool suite for high performance computing environments providing significant enhancements to increase the scalability and performance of message communications in the network. The Software Product is provided at no charge, subject to the terms of this Agreement. The Software Product is provided at no charge, subject to the terms of this Agreement.
2 Grant of License
The Software Product consists of the Mellanox HPC-X™ software in executable language. You may install and execute this Software solely in executable code for the Term of this EULA and copy and internally distribute the Software Product or any of its components in binary form only without payment to Mellanox.
Each copy of the software must include a copy of these terms and the copyright notice contained in the Software Product.
3 Other Rights and Limitations
3.1 Reverse Engineering; Modifications. Except as allowable under applicable third party license agreements, You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Software Product, and shall not adapt, translate, port, create derivative works of or otherwise modify the Software Product or allow any third party to do so.
3.2 Separation of Components. This Software Product may be separated into individual software components provided such components are distributed with their accompanying license terms and copyright notices.
3.3 Transfer. You may not assign, sublicense, transfer, encumber, pledge, lease, rent, time-share or otherwise share your rights under this Agreement, or otherwise allow third parties any use of the Software Product.
3.4 Copies. You may not otherwise use or copy the Software Product except as expressly allowed under this EULA.
3.5 Marks. You may not alter, remove or obscure any copyright, trademark, trade secret, patent, proprietary or any other legal notice contained in the Software Product (including those of third parties).
4 NO WARRANTY
4.1 MELLANOX FURNISHES THE SOFTWARE PRODUCTS AND THE DOCUMENTATION TO YOU “AS IS,” UNSUPPORTED (EXCEPT AS NOTED IN SECTION 9), WITHOUT WARRANTY OF ANY KIND. MELLANOX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, COMPLETENESS, NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. MELLANOX SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, DEFECT, DEFICIENCY OR NONCONFORMITY IN THE SOFTWARE PRODUCTS, THE DOCUMENTATION OR THE EXPLANATORY MATERIALS, OR THE NON-OPERABILITY OF THE SOFTWARE PRODUCT.
4.2 Without limiting the foregoing, the Software provided under this Agreement may be distributed with certain freeware, open source or other third-party components ("Open Source Software") which, if included, are provided pursuant to the terms of the applicable Open Source License governing its use and distribution. Please see the links provided in the Third-Party Free Software Rights Notice for such Open Source License terms. MELLANOX THEREFORE PROVIDES SUCH OPEN SOURCE SOFTWARE ON AN "AS IS" BASIS WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY OPEN SOURCE SOFTWARE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (B) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN WHERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5 Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF DATA, INFORMATION, NEGLIGENCE OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR INABILITY TO USE, THE SOFTWARE PRODUCT OR RELATED COMPONENTS OR DOCUMENTATION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, IN NO EVENT WILL MELLANOX’ TOTAL LIABILITY HEREUNDER, INCLUDING FOR DIRECT DAMAGES, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY MELLANOX FOR THE SOFTWARE PRODUCT, THE USE OF WHICH IS THE CAUSE OF SUCH LIABILITY. THESE LIMITATIONS WILL APPLY FOR ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT LIABILITY, IN LAW OR IN EQUITY, EVEN IF MELLANOX HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6 Qualifications and Limitations Basis of Bargain
The limited warranty, exclusive remedies and limited liability provisions set forth herein are fundamental elements of the basis of the Agreement between Mellanox and you, and you accept and confirm that Mellanox would not be able to provide the Software Product on an economic basis without such limitations.
7 Term; Termination
This Agreement is effective upon installation or use of the Software Product and shall continue until it is terminated by mutual written agreement. In the event of termination, you must destroy all copies of the Software Product and all its component parts. Sections 3, 4, 5, 6, 8, 9, 11 and 12 will survive termination of this Agreement for any reason.
8 Title; Trademarks
8.1 Except as specifically permitted herein, no portion of the Software Product, including but not limited to object code and source code and the printed materials accompanying the Software Product, may be reproduced, modified, distributed, republished or otherwise exploited in an form or by any means for any purpose without the prior written permission of Mellanox.
8.2 Subject to section 8.4 below, all rights and title in and to the Software Product, and any change, enhancement, addition, correction, modification and/or derivative work of the Software Product, whether made by Mellanox or by you with Mellanox’ prior written consent, are owned exclusively by Mellanox. The Software Product is protected by copyright laws and international treaty provisions and is licensed, not sold.
8.3 The name Mellanox, HPC-X™, and all other trademarks, service marks, trade names, and logos of Mellanox are owned by Mellanox, and may not be used in connection with any product or service that is not Mellanox’ without the prior written consent of Mellanox. All other trademarks, service marks, trade names, or logos cited herein are the property of their respective owners.
8.4 This Software Product operates or interfaces with certain third party free software programs, the details, and the limitations applying to the use, of which, are set forth in the "Third Party Free Software Rights Notice" attached hereto. If you wish to obtain source code pursuant to GPL or LGPL licenses for the items listed in the attached, please contact Mellanox at the address detailed at: www.mellanox.com/support
Mellanox retains all title, ownership, interests and intellectual property rights in and to the Software and deems the Software to be confidential information. To the extent the Software contains any materials licensed from third parties, third party suppliers may own such licensed materials. Mellanox retains all rights not expressly granted to Licensee in this Agreement. Licensee agrees to protect and maintain the confidentiality of the Software, and not to disclose the Software to any third parties except as expressly permitted in this Agreement. Licensee acknowledges that its breach of confidentiality shall cause Mellanox irreparable injury and entitle Mellanox to obtain equitable relief, in addition to all other remedies available to it. Licensee further acknowledges that Licensee is acquiring only a limited license to use the Software and not any title to or ownership of the Software or any part thereof and that the Software is proprietary to and copyrighted by Mellanox. MELLANOX SOFTWARE IS COPYRIGHTED AND LICENSED, NOT SOLD.
10 Product Support
Product support for the Software Product is provided by Mellanox or its authorized agents under a separate agreement, in accordance with Mellanox’ standard support and maintenance terms and conditions. For product support, please refer to Mellanox support number provided in the documentation.
11 Governing Law and Jurisdiction
This Agreement shall be construed and governed in accordance with the laws of the State of Israel regardless of its conflict of laws rules, and the competent courts of Yokneam, Israel shall have permissive jurisdiction over any dispute under this Agreement or otherwise related to the Software Product.
Mellanox HPC-X™ Scalable Software Toolkit:
Third Party Free Software Rights Notice
Mellanox Software includes the following open source/ freeware that are subject to specific license conditions listed in the table below, which may be updated from time to time by Mellanox or the Open Source provider. The below table is current as of December 2019. Send Mellanox update queries available at: www.mellanox.com/support/gnu-code-request
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12 Entire Agreement
This agreement is the complete and exclusive agreement between you and Mellanox, and it supersedes any prior proposal, representation or understanding between the parties, oral or written, and any other communication relating to the subject matter of this agreement.
I Have Read the Above End User License Agreement.