NVIDIA MELLANOX
SPECTRUM SWITCH SOFTWARE DEVELOPMENT KIT
LICENSE AGREEMENT

PLEASE READ CAREFULLY: This license is a legal agreement between you and MELLANOX TECHNOLOGIES, LTD ("Mellanox" or "Licensor") and governs the use of the NVIDA Mellanox Spectrum Switch Software Development Kit and materials provided hereunder ("Software"). By downloading, installing, copying, accessing, or using the Software once you have checked the "I have read the above License Agreement" and choosing the "I Accept" option located on or adjacent to the screen where this Agreement is displayed , or by signing this Agreement, you agree to the terms of this Agreement, any applicable warranty statement, and the terms and conditions contained in the Mellanox Software, as define below. If you are accepting these terms on behalf of a company or other legal entity, you represent that you have legal authority and ‘you’ will mean the entity you represent. If you do not agree to these terms, do not download, install, copy, access, or use the software and if you downloaded the Software, promptly uninstall it, and return this Software package to Mellanox.

1. LICENSE:
1.1 Development License. Subject to the terms and conditions of this Agreement Mellanox hereby grants Licensee, a non-exclusive, worldwide, royalty-free, fully paid-up, revocable, and non-transferable license to (i) install and use the Mellanox Software and (ii) make derivative works of the Mellanox Software in source code form solely for internal use only and solely to enable Mellanox Products to interface with Licensee Products for use in conjunction only with Mellanox's Products.

For purposes of clarity, "Mellanox Software" means the NVIDIA Mellanox proprietary software development kit (SDK) in binary and source code form more generally described as the NVIDIA Mellanox Spectrum Switch SDK provided to run on the Development Kit (DVK) or Development System (DVS) purchased by the Licensee and all Intellectual Property Rights therein or thereto. In the event of a conflict or an inconsistency between what is defined herein and what is delivered to Licensee, the Mellanox Software shall be deemed to be that Confidential Information that Mellanox, its employees or agents delivers to Licensee.

1.2 Distribution License. Subject to the terms and conditions of this Agreement, Mellanox hereby grants Licensee a non-exclusive, worldwide, royalty-free and non-transferable license to use, reproduce and distribute through multiple channels of distribution the Mellanox Software (including licensed derivative works per Section 1.1 (ii)) in binary form solely as integrated with Licensee Products that incorporate Mellanox’ Products as licensed or purchased from Mellanox or an authorized Mellanox distributor.

2. RESTRICTIONS: Except as expressly provided herein, You shall not (i) Sell, license, rent, lend, distribute or otherwise transfer the Mellanox Software or any derivative works thereof; (ii) copy, modify, prepare derivative works of, reverse assemble, disassemble, decompile, decrypt, or otherwise attempt to derive source code from the Mellanox Software, or allow any third party to do so. Except as expressly set forth in this Agreement, you acquire no rights to any Mellanox Confidential Information, Mellanox Software, including any derivatives thereof, or any source code in any of the foregoing.
3. OWNERSHIP. Licensee acknowledges that any and all Intellectual Property Rights in the Mellanox Software including derivatives is and shall remain the property of Mellanox. All software is licensed not sold by Mellanox. This Agreement pertains solely to Mellanox’s Spectrum Switch SDK software as generally available and delivered to Mellanox customers. All other information, code, documentation, or other information furnished licensee pursuant to this Agreement shall be Mellanox confidential information and is for Licensee’s internal use only pursuant to the terms of Section 6 herein. All rights not expressly granted under this Agreement are reserved by Mellanox or its suppliers.

4. NO WARRANTY.
4.1 Mellanox Software. THE MELLANOX SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MELLANOX EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING THIS AGREEMENT OR THE MELLANOX SOFTWARE OR THE DOCUMENTATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING BUT NOT LIMITED TO ALL IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MELLANOX DOES NOT WARRANT THAT THE MELLANOX SOFTWARE FURNISHED UNDER THIS AGREEMENT IS ERROR FREE OR WILL PERFORM ACCORDING TO ANY SPECIFICATIONS. ALL USE OF AND RELIANCE ON THE MELLANOX SOFTWARE IS AT THE SOLE RISK OF AND RESPONSIBILITY OF LICENSEE.
4.2 Third Party Components. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT INCLUDING THIS SECTION 4 AND SECTION 6 BELOW, ALL THIRD PARTY COMPONENTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MELLANOX AND ITS SUPPLIERS MAKE NO WARRANTY EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO TITLE, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE USE OF SUCH THIRD PARTY COMPONENTS. IN NO EVENT SHALL MELLANOX OR ITS SUPPLIERS 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 IN CONNECTION WITH THE THIRD PARTY COMPONENTS OR THE USE OF SUCH THIRD PARTY COMPONENTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
5. THIRD-PARTY COMPONENTS. The Software may include third-party components with separate legal notices or terms as may be described in proprietary notices accompanying the Software. If and to the extent there is a conflict between the terms in this license and the third-party license terms, the third-party terms control only to the extent necessary to resolve the conflict.
6. LIMITATION OF LIABILITY. INDEPENDENTLY OF ANY OTHER LIMITATION HEREOF AND REGARDLESS OF WHETHER THE PURPOSE OF ANY REMEDY SET FORTH HEREIN IS SERVED, IT IS AGREED THAT IN NO EVENT SHALL MELLANOX AND/OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATING TO THE USE OF THE MELLANOX SOFTWARE REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF A CONTRACTUAL, STATUTORY OR COMMON LAW DUTY OF ANY KIND. IN NO EVENT SHALL MELLANOX AND/OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES, LOSS OF USE, INTERRUPTION OF BUSINESS OR DESTRUCTION OF DATA RESULTING FROM USE OF THE MELLANOX SOFTWARE EVEN IF MELLANOX AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS BASED ON BREACHES OF ANY LICENSE GRANT OR CONFIDENTIALITY OBLIGATION, IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON EITHER PARTY FOR ANY REASON WHATSOEVER HEREUNDER, THE AGGREGATE AMOUNTS PAYABLE BY EITHER PARTY TO THE OTHER BY REASON THEREOF SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). Licensee acknowledges that the foregoing limitations are an essential element of the Agreement between the parties and that in the absence of such limitations the terms and conditions set forth in this Agreement would be substantially different.
7. TERMINATION. Your rights under this license will terminate automatically without notice from Mellanox if you fail to comply with any term and condition of this license or if you commence or participate in any legal proceeding against Mellanox with respect to the Software. Upon any termination of this license, you agree to promptly discontinue use of the Software and destroy all copies in your possession or control. Your prior distributions in accordance with this license are not affected by the termination of this license. All provisions of this license will survive termination, except for the license granted to you.
8. NO ASSIGNMENT. This Agreement shall not be assigned by Licensee whether voluntarily or involuntarily or by operation of law, in whole or in part, to any party without the prior written consent of Mellanox. No such assignment by Licensee howsoever occurring shall relieve Licensee of its obligations hereunder. Any assignment in violation of this Section 8 shall be null and void from the beginning and shall be deemed a material breach of this Agreement. Mellanox may assign, delegate, or transfer this license and its rights and obligations, and if to a non-affiliate you will be notified.
9. GOVERNING LAW. The rights and obligations of the parties under this Agreement shall be governed in all respects by the laws of the State of Israel, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. You agree to all terms of this license in the English language. You agree that all disputes arising hereunder shall be adjudicated in the state and federal courts having jurisdiction over disputes arising in Yokneam, Israel. You hereby agree and consent to the personal jurisdiction of such courts.
10. EXPORT. The Software is subject to United States export laws and regulations. You agree to comply with all applicable U.S. and international export laws, including the Export Administration Regulations (EAR) administered by the U.S. Department of Commerce and economic sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC). These laws include restrictions on destinations, end-users and end-use. By accepting this license, you confirm that you are not currently residing in a country or region currently embargoed by the U.S. and that you are not otherwise prohibited from receiving the Software.
11. NOTICES: Notices. All notices shall be sent by e-mail to the other party's mailbox where practicable, and shall also be given in writing, and shall be deemed to have been duly given when delivered by hand, posted by registered first class mail (airmail if international) or sent via recognized overnight couriers (e.g., Federal Express, DHL), or sent by e-mail or fax to the party to which such notice is required to be given at such e-mail address or fax number as a party may have specified to the other in writing. Notices to Mellanox should be sent to: Legal_Notices@mellanox.com.
12. ENTIRE AGREEMENT. This license is the final, complete, and exclusive agreement between the parties relating to the subject matter of this license and supersedes all prior or contemporaneous understandings and agreements relating to this subject matter, whether oral or written. If any court of competent jurisdiction determines that any provision of this license is illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect. Any amendment or waiver under this license shall be in writing and signed by representatives of both parties.
