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SOFTWARE LICENSE AGREEMENT |
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Unless you and Broadcom Corporation (“Broadcom”) execute a separate written |
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software license agreement governing use of the accompanying software, this |
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software is licensed to you under the terms of this Software License Agreement |
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(“Agreement”). |
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ANY USE, REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE CONSTITUTES YOUR |
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ACCEPTANCE OF THIS AGREEMENT. |
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1. DEFINITIONS. |
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1.1. “Broadcom Product” means any of the proprietary integrated circuit |
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product(s) sold by Broadcom with which the Software was designed to be used, or |
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their successors. |
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1.2. “Licensee” means you or if you are accepting on behalf of an entity |
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then the entity and its affiliates exercising rights under, and complying with |
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all of the terms of this Agreement. |
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1.3. “Software” shall mean that software made available by Broadcom to |
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Licensee in binary code form with this Agreement. |
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2. LICENSE GRANT; OWNERSHIP |
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2.1. License Grants. Subject to the terms and conditions of this Agreement, |
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Broadcom hereby grants to Licensee a non-exclusive, non-transferable, |
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royalty-free license (i) to use and integrate the Software in conjunction with |
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any other software; and (ii) to reproduce and distribute the Software complete, |
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unmodified and as provided by Broadcom, and only for use with a Broadcom |
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Product. |
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2.2. Restriction on Modification. Licensee may not make any modifications |
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to the Software. |
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2.3. Restriction on Distribution. Licensee shall only distribute the |
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Software under the terms of this Agreement and a copy of this Agreement |
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accompanies such distribution. |
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2.4. Proprietary Notices. Licensee shall not remove, efface or obscure any |
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copyright or trademark notices from the Software. Licensee shall include |
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reproductions of the Broadcom copyright notice with each copy of the Software, |
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except where such Software is embedded in a manner not readily accessible to |
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the end user. Licensee acknowledges that any symbols, trademarks, tradenames, |
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and service marks adopted by Broadcom to identify the Software belong to |
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Broadcom and that Licensee shall have no rights therein. |
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2.5. Ownership. Broadcom shall retain all right, title and interest, |
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including all intellectual property rights, in and to the Software. Licensee |
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hereby covenants that it will not assert any claim that the Software created by |
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or for Broadcom infringe any intellectual property right owned or controlled by |
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Licensee; provided however, the foregoing shall not apply in case the Agreement |
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is terminated. |
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2.6. No Other Rights Granted; Restrictions. Apart from the license rights |
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expressly set forth in this Agreement, Broadcom does not grant and Licensee |
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does not receive any ownership right, title or interest nor any security |
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interest or other interest in any intellectual property rights relating to the |
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Software, nor in any copy of any part of the foregoing. No license is granted |
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to Licensee in any human readable code of the Software (source code). Licensee |
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shall not (i) use, license, sell or otherwise distribute the Software except as |
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provided in this Agreement, (ii) attempt to modify in any way, reverse |
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engineer, decompile or disassemble any portion of the Software; or (iii) use |
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the Software or other material in violation of any applicable law or |
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regulation, including but not limited to any regulatory agency, such as FCC, |
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rules. |
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3. NO WARRANTY OR SUPPORT |
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3.1. No Warranty. THE SOFTWARE IS OFFERED “AS IS,” AND BROADCOM GRANTS AND |
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LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, |
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COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. BROADCOM SPECIFICALLY |
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DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC |
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PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY UPGRADES TO OR |
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DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, BROADCOM |
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GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT |
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INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM |
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INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY. |
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3.2. No Support. Nothing in this agreement shall obligate Broadcom to |
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provide any support for the Software. Broadcom may, but shall be under no |
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obligation to, correct any defects in the Software and/or provide updates to |
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licensees of the Software. Licensee shall make reasonable efforts to promptly |
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report to Broadcom any defects it finds in the Software, as an aid to creating |
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improved revisions of the Software. |
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3.3. Dangerous Applications. The Software is not designed, intended, or |
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certified for use in components of systems intended for the operation of |
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weapons, weapons systems, nuclear installations, means of mass transportation, |
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aviation, life-support computers or equipment (including resuscitation |
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equipment and surgical implants), pollution control, hazardous substances |
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management, or for any other dangerous application in which the failure of the |
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Software could create a situation where personal injury or death may occur. |
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Licensee understands that use of the Software in such applications is fully at |
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the risk of Licensee. |
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4. TERM AND TERMINATION |
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4.1. Termination. This Agreement will automatically terminate if Licensee |
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fails to comply with any of the terms and conditions hereof. In such event, |
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Licensee must destroy all copies of the Software and all of its component |
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parts. |
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4.2. Effect Of Termination. Upon any termination of this Agreement, the |
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rights and licenses granted to Licensee under this Agreement shall immediately |
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terminate. |
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4.3. Survival. The rights and obligations under this Agreement which by |
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their nature should survive termination will remain in effect after expiration |
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or termination of this Agreement. |
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5. CONFIDENTIALITY |
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5.1. Obligations. Licensee acknowledges and agrees that any documentation |
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relating to the Software, and any other information (if such other information |
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is identified as confidential or should be recognized as confidential under the |
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circumstances) provided to Licensee by Broadcom hereunder (collectively, |
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“Confidential Information”) constitute the confidential and proprietary |
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information of Broadcom, and that Licensee’s protection thereof is an essential |
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condition to Licensee’s use and possession of the Software. Licensee shall |
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retain all Confidential Information in strict confidence and not disclose it to |
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any third party or use it in any way except under a written agreement with |
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terms and conditions at least as protective as the terms of this Section. |
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Licensee will exercise at least the same amount of diligence in preserving the |
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secrecy of the Confidential Information as it uses in preserving the secrecy of |
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its own most valuable confidential information, but in no event less than |
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reasonable diligence. Information shall not be considered Confidential |
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Information if and to the extent that it: (i) was in the public domain at the |
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time it was disclosed or has entered the public domain through no fault of |
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Licensee; (ii) was known to Licensee, without restriction, at the time of |
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disclosure as proven by the files of Licensee in existence at the time of |
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disclosure; or (iii) becomes known to Licensee, without restriction, from a |
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source other than Broadcom without breach of this Agreement by Licensee and |
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otherwise not in violation of Broadcom’s rights. |
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5.2. Return of Confidential Information. Notwithstanding the foregoing, all |
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documents and other tangible objects containing or representing Broadcom |
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Confidential Information and all copies thereof which are in the possession of |
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Licensee shall be and remain the property of Broadcom, and shall be promptly |
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returned to Broadcom upon written request by Broadcom or upon termination of |
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this Agreement. |
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6. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO |
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EVENT SHALL BROADCOM OR ANY OF BROADCOM’S LICENSORS HAVE ANY LIABILITY FOR ANY |
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INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON |
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ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING |
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NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT |
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LIMITED TO LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE |
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POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BROADCOM’S LIABILITY WHETHER IN |
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CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY |
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LICENSEE FOR SOFTWARE UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY |
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NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. |
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7. MISCELLANEOUS |
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7.1. Export Regulations. YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS |
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SUBJECT TO UNITED STATES AND OTHER APPLICABLE EXPORT-RELATED LAWS AND |
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REGULATIONS AND THAT YOU MAY NOT EXPORT, RE-EXPORT OR TRANSFER THE SOFTWARE OR |
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ANY DIRECT PRODUCT OF THE SOFTWARE EXCEPT AS PERMITTED UNDER THOSE LAWS. |
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WITHOUT LIMITING THE FOREGOING, EXPORT, RE-EXPORT OR TRANSFER OF THE SOFTWARE |
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TO CUBA, IRAN, NORTH KOREA, SUDAN AND SYRIA IS PROHIBITED. |
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7.2 Assignment. This Agreement shall be binding upon and inure to the |
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benefit of the parties and their respective successors and assigns, provided, |
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however that Licensee may not assign this Agreement or any rights or obligation |
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hereunder, directly or indirectly, by operation of law or otherwise, without |
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the prior written consent of Broadcom, and any such attempted assignment shall |
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be void. Notwithstanding the foregoing, Licensee may assign this Agreement to |
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a successor to all or substantially all of its business or assets to which this |
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Agreement relates that is not a competitor of Broadcom. |
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7.3. Governing Law; Venue. This Agreement shall be governed by the laws of |
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California without regard to any conflict-of-laws rules, and the United Nations |
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Convention on Contracts for the International Sale of Goods is hereby excluded. |
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The sole jurisdiction and venue for actions related to the subject matter |
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hereof shall be the state and federal courts located in the County of Orange, |
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California, and both parties hereby consent to such jurisdiction and venue. |
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7.4. Severability. All terms and provisions of this Agreement shall, if |
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possible, be construed in a manner which makes them valid, but in the event any |
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term or provision of this Agreement is found by a court of competent |
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jurisdiction to be illegal or unenforceable, the validity or enforceability of |
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the remainder of this Agreement shall not be affected if the illegal or |
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unenforceable provision does not materially affect the intent of this |
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Agreement. If the illegal or unenforceable provision materially affects the |
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intent of the parties to this Agreement, this Agreement shall become |
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terminated. |
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7.5. Equitable Relief. Licensee hereby acknowledges that its breach of this |
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Agreement would cause irreparable harm and significant injury to Broadcom that |
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may be difficult to ascertain and that a remedy at law would be inadequate. |
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Accordingly, Licensee agrees that Broadcom shall have the right to seek and |
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obtain immediate injunctive relief to enforce obligations under the Agreement |
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in addition to any other rights and remedies it may have. |
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7.6. Waiver. The waiver of, or failure to enforce, any breach or default |
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hereunder shall not constitute the waiver of any other or subsequent breach or |
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default. |
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7.7. Entire Agreement. This Agreement sets forth the entire Agreement |
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between the parties and supersedes any and all prior proposals, agreements and |
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representations between them, whether written or oral concerning the Software. |
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This Agreement may be changed only by mutual agreement of the parties in |
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writing. |
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