This Software License Agreement ("Agreement”) is a legal agreement between you and NVIDIA Corporation ("NVIDIA") and governs your use of a NVIDIA firmware update tool and firmware software and materials (“SOFTWARE”).
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the entity to this Agreement, in which case “you” will mean the entity you represent.
If you don’t have the required authority to accept this Agreement, or if you don’t accept all the terms and conditions of this Agreement, do not download, install, copy or use the SOFTWARE.
You agree to use the SOFTWARE only for purposes that are permitted by (a) this Agreement, and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
Subject to the terms of this Agreement, NVIDIA hereby grants you a non-exclusive, non-transferable license, without the right to sublicense, to: (a) install and use the installer software tool in any computer, server or system, (b) flash the firmware provided into a compatible NVIDIA microprocessor(s), SoCs and GPUs, and (c) use any documentation provided by NVIDIA.
You may allow employees and contractors of your entity or of your subsidiary(ies) to access and use the SOFTWARE from your secure network to perform work on your behalf, provided that you are responsible for the compliance with the terms of this Agreement by your authorized users.
NVIDIA reserves all rights, title and interest in and to the SOFTWARE not expressly granted to you under this Agreement.
The following license limitations apply to your use of the SOFTWARE:
2.1 The firmware is licensed only for use with microprocessor(s), SoCs and GPUs which have been (i) designed by NVIDIA and/or its affiliates and (ii) sold (directly or indirectly) by NVIDIA and/or its affiliates. You shall not use firmware in conjunction with, nor cause the firmware to be executed by, any other microprocessor, SoC or GPU. You shall not translate firmware, nor cause or permit firmware to be translated, from the architecture or language in which it is originally provided by NVIDIA, into any other architecture or language.
2.2 You may not reverse engineer, decompile or disassemble, or remove copyright or other proprietary notices from any portion of the SOFTWARE or copies of the SOFTWARE.
2.3 You may not sell, rent, sublicense, transfer, distribute, modify, or create derivative works of any portion of the SOFTWARE.
2.4 You may not bypass, disable, or circumvent any technical limitation, encryption, security, digital rights management or authentication mechanism in the SOFTWARE.
2.5 You may not use the SOFTWARE in any manner that would cause it to become subject to an open source software license. As examples, licenses that require as a condition of use, modification, and/or distribution that the SOFTWARE be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
2.6 NVIDIA does not design, test or manufacture the SOFTWARE for use with systems or applications where the use or failure of the systems or applications can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss. Examples include use in nuclear, avionics, navigation, military, medical, life support or other life critical applications. You agree that NVIDIA shall not be liable to you or any third party for any claims or damages arising from such uses.
2.7 You agree to defend, indemnify and hold harmless NVIDIA and its affiliates, and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, fines, restitutions and expenses (including but not limited to attorney’s fees and costs incident to establishing the right of indemnification) arising out of or related to your use of the SOFTWARE outside of the scope of this Agreement, or not in compliance with its terms.
3. Third Party Licenses
The SOFTWARE may come bundled with, or otherwise include or be distributed with, third-party software licensed by a NVIDIA supplier and/or open source software provided under an open source license. Use of third-party software is subject to the third-party license terms, or in the absence of third-party terms, the terms of this Agreement. Copyright to third-party software is held by the copyright holders indicated in the third-party software or license.
The SOFTWARE, modifications thereto, and their respective intellectual property rights therein are owned by NVIDIA or its licensors and are licensed to you as described in this Agreement. NVIDIA’s licensors are intended third-party beneficiaries with the rights to enforce this Agreement with respect to their intellectual property rights.
You may, but don’t have to, provide to NVIDIA suggestions, feature requests or other feedback regarding the SOFTWARE, including possible enhancements or modifications to the SOFTWARE. For any feedback that you voluntarily provide, you hereby grant NVIDIA and its affiliates a perpetual, non-exclusive, worldwide, irrevocable license to use, reproduce, modify, license, sublicense (through multiple tiers of sublicensees), and distribute (through multiple tiers of distributors) it without the payment of any royalties or fees to you. NVIDIA will decide if and how to respond to feedback and if to incorporate feedback into the SOFTWARE.
6. No Warranties
THE SOFTWARE IS PROVIDED BY NVIDIA “AS IS” AND “WITH ALL FAULTS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.
7. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL NVIDIA’S AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED US$10.00. THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
This license terminates automatically: (i) if you breach any term of this Agreement; or (ii) if you commence or participate in any legal proceeding against NVIDIA with respect to the SOFTWARE. Upon the termination of this Agreement, you must promptly discontinue use of the SOFTWARE and destroy all copies of the SOFTWARE in your possession or control. Upon written request, you will certify in writing that you have complied with your obligations under this section. Upon termination of this Agreement all provisions survive except for the license grant provision.
If you wish to assign this Agreement or your rights and obligations, by any means or operation of law, contact NVIDIA to ask for permission. Any attempted assignment not approved by NVIDIA in writing shall be void and of no effect. NVIDIA may assign, delegate or transfer this Agreement and its rights and obligations, and if to a non-affiliate you will be notified.
You agree to cooperate with NVIDIA and provide reasonably requested information to verify your compliance with this Agreement.
This Agreement will be governed in all respects by the laws of the United States and of the State of Delaware as those laws are applied to contracts entered into and performed entirely within Delaware, by Delaware residents, without regard to the conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. You agree to all terms of this Agreement in the English language.
The state or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this Agreement. Notwithstanding this, you agree that NVIDIA shall still be allowed to apply for injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction.
If it turns out that any provision of this Agreement is not unenforceable, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law and the remaining provisions will remain in full force and effect. Unless otherwise specified, remedies are cumulative.
The SOFTWARE has been developed entirely at private expense and is “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this Agreement pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (b)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is NVIDIA, 2788 San Tomas Expressway, Santa Clara, CA 95051.
The SOFTWARE is subject to United States export laws and regulations. You agree that you will not ship, transfer or export the SOFTWARE into any country, or use the SOFTWARE in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. By accepting this Agreement, you confirm that you are not a resident or citizen of any country currently embargoed by the U.S. and that you are not otherwise prohibited from receiving the SOFTWARE.
You agree that any notices that NVIDIA sends you electronically, such as via email, will satisfy any legal communication requirements. Please direct your legal notices or other correspondence to NVIDIA Corporation, 2788 San Tomas Expressway, Santa Clara, California 95051, United States of America, Attention: Legal Department.
This Agreement and any exhibits incorporated to this Agreement constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior negotiations, conversations, or discussions between the parties relating to this subject matter. Any additional and/or conflicting terms on documents issued by you are null, void, and invalid. Any amendment or waiver under this Agreement shall be in writing and signed by representatives of both parties.