OpenSolaris_b135/pkgdefs/SUNWqlc/lic_Qlogic
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Copyright (c) 2003-2008 QLogic Corporation
QLogic Leadville qlc HBA device driver
This program includes a device driver for the QLogic Leadville qlc HBA
device driver distributed with QLogic hardware specific firmware binary
files. You may modify and redistribute the device driver code (but not
the firmware binary files) under License "A", version 1.0 of the Common
Development and Distribution License ("CDDL") as published by Sun
Microsystems, Inc. and reproduced below. The hardware binary files are
licensed under License "B".
REGARDLESS OF WHAT LICENSING MECHANISM IS USED OR APPLICABLE,
THIS PROGRAM IS PROVIDED BY QLOGIC CORPORATION "AS IS" AND ANY EXPRESS
OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
DISCLAIMED. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT,
STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING
IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
USER ACKNOWLEDGES AND AGREES THAT USE OF THIS PROGRAM WILL NOT
CREATE OR GIVE GROUNDS FOR A LICENSE BY IMPLICATION, ESTOPPEL, OR
OTHERWISE IN ANY INTELLECTUAL PROPERTY RIGHTS (PATENT, COPYRIGHT, TRADE
SECRET, MASK WORK, OR OTHER PROPRIETARY RIGHT) EMBODIED IN ANY OTHER
QLOGIC HARDWARE OR SOFTWARE EITHER SOLELY OR IN COMBINATION WITH THIS
PROGRAM.
License A:
COMMON DEVELOPMENT AND DISTRIBUTION LICENSE (CDDL)
Version 1.0
1. Definitions.
1.1. "Contributor" means each individual or entity that creates or
contributes to the creation of Modifications.
1.2. "Contributor Version" means the combination of the Original
Software, prior Modifications used by a Contributor (if any),
and the Modifications made by that particular Contributor.
1.3. "Covered Software" means (a) the Original Software, or (b)
Modifications, or (c) the combination of files containing
Original Software with files containing Modifications, in
each case including portions thereof.
1.4. "Executable" means the Covered Software in any form other than
Source Code.
1.5. "Initial Developer" means the individual or entity that first
makes Original Software available under this License.
1.6. "Larger Work" means a work which combines Covered Software or
portions thereof with code not governed by the terms of this
License.
1.7. "License" means this document.
1.8. "Licensable" means having the right to grant, to the maximum
extent possible, whether at the time of the initial grant or
subsequently acquired, any and all of the rights conveyed herein.
1.9. "Modifications" means the Source Code and Executable form of any
of the following:
A. Any file that results from an addition to, deletion from or
modification of the contents of a file containing Original
Software or previous Modifications;
B. Any new file that contains any part of the Original Software
or previous Modification; or
C. Any new file that is contributed or otherwise made available
under the terms of this License.
1.10. "Original Software" means the Source Code and Executable form of
computer software code that is originally released under this
license.
1.11. "Patent Claims" means any patent claim(s), now owned or hereafter
acquired, including without limitation, method, process, and
apparatus claims, in any patent Licensable by grantor.
1.12. "Source Code" means (a) the common form of computer software code
in which modifications are made and (b) associated documentation
included in or with such code.
1.13. "You" (or "Your") means an individual or a legal entity
exercising rights under, and complying with all of the terms of,
this License. For legal entities, "You" includes any entity which
controls, is controlled by, or is under common control with You.
For purposes of this definition, "control" means (a) the power,
direct or indirect, to cause the direction or management of such
entity, whether by contract or otherwise, or (b) ownership of
more than fifty percent (50%) of the outstanding shares or
beneficial ownership of such entity.
2. License Grants.
2.1. The Initial Developer Grant.
Conditioned upon Your compliance with Section 3.1 below and
subject to third party intellectual property claims, the Initial
Developer hereby grants You a world-wide, royalty-free, non-
exclusive license:
(a) under intellectual property rights (other than patent or
trademark) Licensable by Initial Developer, to use, reproduce,
modify, display, perform, sublicense and distribute the
Original Software (or portions thereof), with or without
Modifications, and/or as part of a Larger Work; and
(b) under Patent Claims infringed by the making, using or selling
of Original Software, to make, have made, use, practice, sell,
and offer for sale, and/or otherwise dispose of the Original
Software (or portions thereof).
(c) The licenses granted in Sections 2.1(a) and (b) are effective
on the date Initial Developer first distributes or otherwise
makes the Original Software available to a third party under
the terms of this License.
(d) Notwithstanding Section 2.1(b) above, no patent license is
granted: (1) for code that You delete from the Original
Software, or (2) for infringements caused by: (i) the
modification of the Original Software, or (ii) the combination
of the Original Software with other software or devices.
2.2. Contributor Grant.
Conditioned upon Your compliance with Section 3.1 below and subject to
third party intellectual property claims, each Contributor hereby
grants You a world-wide, royalty-free, non-exclusive license:
(a) under intellectual property rights (other than patent or trademark)
Licensable by Contributor to use, reproduce, modify, display,
perform, sublicense and distribute the Modifications created by
such Contributor (or portions thereof), either on an unmodified
basis, with other Modifications, as Covered Software and/or as part
of a Larger Work; and
(b) under Patent Claims infringed by the making, using, or selling of
Modifications made by that Contributor either alone and/or in
combination with its Contributor Version (or portions of such
combination), to make, use, sell, offer for sale, have made, and/or
otherwise dispose of: (1) Modifications made by that Contributor
(or portions thereof); and (2) the combination of Modifications
made by that Contributor with its Contributor Version (or portions
of such combination).
(c) The licenses granted in Sections 2.2(a) and 2.2(b) are effective on
the date Contributor first distributes or otherwise makes the
Modifications available to a third party.
(d) Notwithstanding Section 2.2(b) above, no patent license is granted:
(1) for any code that Contributor has deleted from the Contributor
Version; (2) for infringements caused by: (i) third party
modifications of Contributor Version, or (ii) the combination of
Modifications made by that Contributor with other software (except
as part of the Contributor Version) or other devices; or (3) under
Patent Claims infringed by Covered Software in the absence of
Modifications made by that Contributor.
3. Distribution Obligations.
3.1. Availability of Source Code.
Any Covered Software that You distribute or otherwise make
available in Executable form must also be made available in Source
Code form and that Source Code form must be distributed only under
the terms of this License. You must include a copy of this License
with every copy of the Source Code form of the Covered Software
You distribute or otherwise make available. You must inform
recipients of any such Covered Software in xecutable form as to
how they can obtain such Covered Software in Source Code form in a
reasonable manner on or through a medium customarily used for
software exchange.
3.2. Modifications.
The Modifications that You create or to which You contribute are
governed by the terms of this License. You represent that You
believe Your Modifications are Your original creation(s) and/or
You have sufficient rights to grant the rights conveyed by this
License.
3.3. Required Notices.
You must include a notice in each of Your Modifications that
identifies You as the Contributor of the Modification. You may not
remove or alter any copyright, patent or trademark notices
contained within the Covered Software, or any notices of licensing
or any descriptive text giving attribution to any Contributor or
the Initial Developer.
3.4. Application of Additional Terms.
You may not offer or impose any terms on any Covered Software in
Source Code form that alters or restricts the applicable version
of this License or the recipients' rights hereunder. You may
choose to offer, and to charge a fee for, warranty, support,
indemnity or liability obligations to one or more recipients of
Covered Software. However, you may do so only on Your own behalf,
and not on behalf of the Initial Developer or any Contributor. You
must make it absolutely clear that any such warranty, support,
indemnity or liability obligation is offered by You alone, and You
hereby agree to indemnify the Initial Developer and every
Contributor for any liability incurred by the Initial Developer or
such Contributor as a result of warranty, support, indemnity or
liability terms You offer.
3.5. Distribution of Executable Versions.
You may distribute the Executable form of the Covered Software
under the terms of this License or under the terms of a license of
Your choice, which may contain terms different from this License,
provided that You are in compliance with the terms of this License
and that the license for the Executable form does not attempt to
limit or alter the recipient's rights in the Source Code form from
the rights set forth in this License. If You distribute the
Covered Software in Executable form under a different license, You
must make it absolutely clear that any terms which differ from
this License are offered by You alone, not by the Initial
Developer or Contributor. You hereby agree to indemnify the
Initial Developer and every Contributor for any liability incurred
by the Initial Developer or such Contributor as a result of any
such terms You offer.
3.6. Larger Works.
You may create a Larger Work by combining Covered Software with
other code not governed by the terms of this License and
distribute the Larger Work as a single product. In such a case,
You must make sure the requirements of this License are fulfilled
for the Covered Software.
4. Versions of the License.
4.1. New Versions.
Sun Microsystems, Inc. is the initial license steward and may
publish revised and/or new versions of this License from time to
time. Each version will be given a distinguishing version number.
Except as provided in Section 4.3, no one other than the license
steward has the right to modify this License.
4.2. Effect of New Versions.
You may always continue to use, distribute or otherwise make the
Covered Software available under the terms of the version of the
License under which You originally received the Covered Software.
If the Initial Developer includes a notice in the Original
Software prohibiting it from being distributed or otherwise made
available under any subsequent version of the License, You must
distribute and make the Covered Software available under the terms
of the version of the License under which You originally received
the Covered Software. Otherwise, You may also choose to use,
distribute or otherwise make the
Covered Software available under the terms of any subsequent
version of the License published by the license steward.
4.3. Modified Versions.
When You are an Initial Developer and You want to create a new
license for Your Original Software, You may create and use a
modified version of this License if You: (a) rename the license
and remove any references to the name of the license steward
(except to note that the license differs from this License); and
(b) otherwise make it clear that the license contains terms which
differ from this License.
5. DISCLAIMER OF WARRANTY.
COVERED SOFTWARE IS PROVIDED UNDER THIS LICENSE ON AN "AS IS"
BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED
SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR
PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE COVERED SOFTWARE IS WITH YOU. SHOULD ANY
COVERED SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE
INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY
NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE.
NO USE OF ANY COVERED SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT
UNDER THIS DISCLAIMER.
6. TERMINATION.
6.1. This License and the rights granted hereunder will terminate
automatically if You fail to comply with terms herein and fail to
cure such breach within 30 days of becoming aware of the breach.
Provisions which, by their nature, must remain in effect beyond
the termination of this License shall survive.
6.2. If You assert a patent infringement claim (excluding declaratory
judgment actions) against Initial Developer or a Contributor (the
Initial Developer or Contributor against whom You assert such
claim is referred to as "Participant") alleging that the
Participant Software (meaning the Contributor Version where the
Participant is a Contributor or the Original Software where the
Participant is the Initial Developer) directly or indirectly
infringes any patent, then any and all rights granted directly or
indirectly to You by such Participant, the Initial Developer (if
the Initial Developer is not the Participant) and all Contributors
under Sections 2.1 and/or 2.2 of this License
shall, upon 60 days notice from Participant terminate
prospectively and automatically at the expiration of such 60 day
notice period, unless if within such 60 day period You withdraw
Your claim with respect to the Participant Software against such
Participant either unilaterally or pursuant to a written agreement
with Participant.
6.3. If You assert a patent infringement claim against Participant
alleging that the Participant Software directly or indirectly
infringes any patent where such claim is resolved (such as by
license or settlement) prior to the initiation of patent
infringement litigation, then the reasonable value of the licenses
granted by such Participant under Sections 2.1 or 2.2 shall be
taken into account in determining the amount or value of any
payment or license.
6.4. In the event of termination under Sections 6.1 or 6.2 above, all
end user licenses that have been validly granted by You or any
distributor hereunder prior to termination (excluding licenses
granted to You by any distributor) shall survive termination.
7. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT
(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE
INITIAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF
COVERED SOFTWARE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE
LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR
LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL
NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM
SUCH PARTY'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS
SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
8. U.S. GOVERNMENT END USERS.
The Covered Software is a "commercial item" as that term is defined
in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
software" (as that term is defined at 48 C.F.R. " 252.227-7014(a)
(1)) and "commercial computer software documentation" as such terms
are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all
U.S. Government End Users acquire Covered Software with only those
rights set forth herein. This U.S. Government Rights clause is in
lieu of, and supersedes, any other FAR, DFAR, or other clause or
provision that addresses Government rights in computer software
under this License.
9. MISCELLANEOUS.
This License represents the complete agreement concerning subject
matter hereof. If any provision of this License is held to be
unenforceable, such provision shall be reformed only to the extent
necessary to make it enforceable. This License shall be governed by
the law of the jurisdiction specified in a notice contained within
the Original Software (except to the extent applicable law, if any,
provides otherwise), excluding such jurisdiction's conflict-of-law
provisions. Any litigation relating to this License shall be subject
to the jurisdiction of the courts located in the jurisdiction and
venue specified in a notice contained within the Original Software,
with the losing party responsible for costs, including, without
limitation, court costs and reasonable attorneys' fees and expenses.
The application of the United Nations Convention on Contracts for
the International Sale of Goods is expressly excluded. Any law or
regulation which provides that the language of a contract shall be
construed against the drafter shall not apply to this License. You
agree that You alone are responsible for compliance with the United
States export administration regulations (and the export control
laws and regulation of any other countries) when You use, distribute
or otherwise make available any Covered Software.
10. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors, each party is
responsible for claims and damages arising, directly or indirectly,
out of its utilization of rights under this License and You agree to
work with Initial Developer and Contributors to distribute such
responsibility on an equitable basis. Nothing herein is intended or
shall be deemed to constitute any admission of liability.
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NOTICE PURSUANT TO SECTION 9 OF THE COMMON DEVELOPMENT AND
DISTRIBUTION LICENSE (CDDL)
The OpenSolaris code released under the CDDL shall be governed by the
laws of the State of California (excluding conflict-of-law provisions).
Any litigation relating to this License shall be subject to the
jurisdiction of the Federal Courts of the Northern District of
California and the state courts of the State of California, with venue
lying in Santa Clara County, California.
License B:
THIS PRODUCT CONTAINS COMPUTER PROGRAMS AND RELATED DOCUMENTATION
("SOFTWARE") THAT BELONG TO QLOGIC CORPORATION ("QLOGIC"), THE USE OF WHICH
IS SUBJECT TO THIS END USER SOFTWARE LICENSE AGREEMENT ("AGREEMENT") UNLESS
OTHERWISE AGREED TO IN WRITING BY QLOGIC. CLICKING ON THE "AGREE" BUTTON
BELOW, INSTALLING/USING THE SOFTWARE OR ENTERING A LICENSE KEY CONSTITUTES
ACCEPTANCE BY LICENSEE ("LICENSEE" MEANS YOU OR THE BUSINESS ENTITY ON WHOSE
BEHALF YOU USE OR INSTALL THE SOFTWARE, AS APPLICABLE) OF ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT UNLESS OTHERWISE AGREED TO IN WRITING BY QLOGIC.
IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
LICENSEE SHALL NOT INSTALL/USE THE SOFTWARE OR ENTER A LICENSE KEY. WRITTEN
APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT.
1. License Grant. Subject to the terms and conditions of this
Agreement, QLogic grants Licensee a limited, non-exclusive license
to redistribute, install, download and/or use the Software (in
object code form only) with certain approved products manufactured
by or for QLogic and approved products manufactured by or for an OEM
customer of QLogic ("QLogic Approved Products"). This license is
only available to original end user purchasers of QLogic Approved
Products that have been purchased through QLogic authorized
distribution channels or approved OEM distribution channels. This
license is not available to any end users of QLogic products who
have purchased QLogic products, which have previously been used and
the license is not available to any purchaser of QLogic application
specific integrated circuits ("ASICs") or any product incorporating
an ASIC, unless the product incorporating the ASIC is a QLogic
Approved Product. No rights or licenses in the Software are granted
to Licensee other than those rights expressly granted in this
Agreement. Nothing in this License entitles Licensee to any
upgrades or updates to, or future releases of, the Software. If
Licensee redistributes the Software, then Licensee shall reproduce
all copyright notices and must include this Agreement or an
agreement which is at least as restrictive as this Agreement.
2. Permitted Use. Licensee may only install and use the Software in
accordance with the documentation provided with the Software and
with QLogic Approved Products.
3. Intellectual Property Rights. The Software contains or embodies
intellectual property of QLogic (or any of its licensors). The
structure, organization and code are valuable trade secrets of
QLogic (or its licensors). QLogic and/or its licensors do not grant,
convey or license to Licensee any rights under any patents,
copyrights, trademarks or any other intellectual property except as
specifically granted herein. The Software is protected under U.S.
copyright laws, international treaty provisions and applicable laws
(including patent laws, if applicable) of the country in which it is
being used. Any unauthorized duplication of the Software is
expressly forbidden.
4. Ownership of Software. Notwithstanding anything to the contrary,
QLogic and its licensors retain all title to and, except as
expressly and unambiguously licensed herein, all rights and interest
in (i) the Software, all copies and derivative works thereof (by
whomever produced), and (ii) all copyright rights, patent rights,
trade secret rights, moral rights and all other intellectual
property and proprietary rights anywhere in the world in the
Software. The Software is only licensed to Licensee and is not
sold.
5. Restrictions and Cooperation. Licensee shall not (and shall not
allow any third party to) (i) decompile, disassemble, or otherwise
reverse engineer or attempt to reconstruct or discover any source
code, or underlying ideas or algorithms of the Software (except to
the extent expressly permitted under applicable law); (ii) provide,
lease, lend, use for timesharing or otherwise use or allow others to
use the Software to or for the benefit of third parties; (iii)
except as specified in the applicable user documentation, modify,
incorporate into or with other hardware or software, or create a
derivative work of any part of the Software; (iv) disseminate
performance information or analysis from any source relating to the
Software; (v) make any copies of the Software except as required to
use the Software as licensed hereunder, except for one (1) copy
solely for archival and back-up purposes, or (vi) remove any
product identification, copyright notice or other proprietary legend
from the Software. Licensee agrees to cooperate with QLogic and its
licensors in connection with their efforts to protect their
copyright/patent rights and other legal rights in the Software.
QLogic may, from time to time, implement additional security
measures for the Software, and Licensee shall cooperate with
such measures and be responsible for installing upgrades that
include such measures.
6. Further Obligations. Licensee shall defend, indemnify and hold
QLogic harmless from and against any and all claims, damages,
liabilities, costs and expenses (including, without limitation,
attorneys" fees) arising out of Licensee"s breach of its obligations
under this Agreement.
7. Term and Termination. This Agreement will become effective on the
date Licensee clicks on the "Agree" button below or otherwise uses
the Software and will remain in force until terminated. Licensee
may terminate this Agreement at any time, and QLogic may terminate
this Agreement if Licensee breaches any of the terms or conditions
hereunder. Licensee agrees to destroy or return to QLogic the
original and all copies of the Software immediately upon any
termination of this Agreement.
8. Confidentiality. Licensee acknowledges that the Software contains
valuable trade secrets of QLogic and other information proprietary
to QLogic and its licensors. Licensee shall: (i)"keep confidential
such trade secrets and proprietary information, including without
limitation all information concerning ideas and algorithms related
to the Software, (ii)"disclose such information only to its
employees and agents to the extent required to use the Software
under the terms of this Agreement and (iii)"bind its employees,
consultants, agents and other third parties in writing to maintain
the confidentiality of such trade secrets and proprietary
information and not use or disclose such information except as
permitted in this Agreement.
9. Limited Warranty and Disclaimer. THE SOFTWARE IS PROVIDED "AS IS"
WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. QLOGIC DOES NOT WARRANT THAT THE SOFTWARE IS
ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. QLOGIC
DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE
USE, OR THE RESULTS OF THE USE OF THE SOFTWARE INCLUDING, WITHOUT
LIMITATION, THE CORRECTNESS, ACCURACY OR RELIABILITY OF SUCH USE OR
RESULTS.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
IN NO EVENT WILL QLOGIC BE LIABLE TO LICENSEE OR ANY THIRD PARTY
FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOST SAVINGS, OR FOR
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY
EVEN IF QLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
OR FOR ANY CLAIM BY ANY THIRD PARTY.
11. Export. Licensee represents, warrants and agrees that it will not,
directly or indirectly, export, re-export or transmit the Software
or any part thereof to any country in which such export, re-export
or transmission is restricted by any applicable U.S. regulation or
statute, without the prior written consent of both QLogic and, if
required, of the Bureau of Export Administration of the U.S.
Department of Commerce, or such other governmental entity as may
have jurisdiction over such export or transmission. In addition to
the above, Software may not, in the absence of authorization by
U.S. and local law and regulations, as required, be used by or
exported or reexported to (i) any U.S. sanctioned or embargoed
country, or to nationals or residents of such countries; or (ii)
any person, entity, organization or other party identified on the
U.S. Department of Commerce's Denied Persons or Entity List, the
U.S. Department of Treasury's Specially Designated Nationals or
Blocked Persons Lists, or the Department of State's Debarred
Parties List, as published and revised from time to time; or
(iii) any party where the end-use involves nuclear,
chemical/biological weapons, rocket systems or unmanned air
vehicles.
12. Miscellaneous. A party"s failure to exercise or its delay in
exercising any rights hereunder will not be deemed to be a waiver
of such right. If any provision of this Agreement shall be held by
any court of competent jurisdiction to be unenforceable or invalid,
that provision shall be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable. This Agreement shall be
construed pursuant to the laws of the State of California and the
United States without regard to conflicts of laws provisions
thereof and without regard to the United Nations Convention on
Authority for the International Sale of Goods. Licensee
irrevocably submits to the jurisdiction of any state or federal
court sitting in the State of California, United States of America,
and consents to venue in such forum with respect to any action or
proceeding that relates to this Agreement. No amendment
to or modification of this Agreement will be binding unless in
writing and signed by a duly authorized officer of QLogic. The
provisions of Sections 3-11 shall survive termination of this
Agreement. This Agreement is in the English language only, which
language shall be controlling and any revision of this Agreement in
any other language shall not be binding. Both parties agree that
this Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all
previous written and oral agreements and communications relating to
the subject matter of this Agreement. NO VENDOR, DISTRIBUTOR,
DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO
MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR
PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE
REPRESENTATIONS OR PROMISES IN THIS AGREEMENT.