This end user license agreement, including the exhibit attached ("Agreement”) is a legal agreement between you and NVIDIA Corporation ("NVIDIA") and governs your use of certain NVIDIA software and materials provided as part of the NVIDIA AI Enterprise software suite delivered under this Agreement (“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 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.
1. License.
1.1 Grant.
Subject to the terms of this Agreement (including, without limitation, the use parameters of your licenses), NVIDIA hereby grants you a non-exclusive, non-transferable license, without the right to sublicense, to: (i) install and use the SOFTWARE on any compatible system, except for when the SOFTWARE is provided with the purchase of NVIDIA hardware, in which case the SOFTWARE is only licensed for use with that hardware, and (ii) make a reasonable number of SOFTWARE copies solely for backup purposes. No orders are binding until accepted by NVIDIA. All orders accepted are subject to the terms of this Agreement.
1.2 Promotional Offerings.
NVIDIA may, from time to time, offer free or discounted pricing programs covering certain uses of the SOFTWARE, as examples for evaluation or academic use. NVIDIA may stop accepting new sign-ups or discontinue a promotional offering at any time. Standard charges will apply after a promotional offering ends or if you exceed the promotional offering use terms. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) for a promotional offering as described in the corresponding offer terms.
1.3 Product Uplift.
NVIDIA may, from time to time at its discretion, give you the option to replace your SOFTWARE licenses subject to payment of applicable fees. In such cases, you must discontinue use of the replaced product license(s) timely upon NVIDIA’s delivery of the replacement product license(s). If requested in writing by NVIDIA, you will provide a written certificate signed by an authorized officer affirming your compliance with the terms of this section.
1.4 License Types.
The NVIDIA AI Enterprise software suite (“NVIDIA AI Enterprise Suite”) is a collection of software and materials, some of which is SOFTWARE provided under this Agreement, and other software and materials which are provided via the NVIDIA GPU Cloud (“NGC”) subject to the terms of the applicable license agreement.
The SOFTWARE available under this Agreement is licensed under the license types below; and not all license types may be available for each product. Your order, license key and/or the product description will indicate the features of your license.
“Perpetual License” means a license that is exclusive of services, however NVIDIA may require you to separately purchase services for a minimum period. After the expiration of services, you retain the right to use a perpetual license at the last-supported level subject to the terms of this Agreement.
“Subscription License” means a license with a fixed duration and inclusive of certain services for the duration of the license. You may have the option to purchase additional services for the duration of a subscription license, based on NVIDIA’s then-current service offerings.
“CPU Socket” means (i) for on-premise deployments, the number of physical processors in the computing environment on which the SOFTWARE is installed, or (ii) in a cloud computing environment, the compute instance on which the SOFTWARE is installed. NVIDIA requires one SOFTWARE license per compute instance.
“GPU” means (I) for on-premise deployments, the number of physical GPUs in the computing environment which is accessed by the SOFTWARE, or (ii) in a cloud computing environment, the number of GPUs attached to the compute instance on which the SOFTWARE is installed. NVIDIA requires one SOFTWARE license for each GPU.
“Server” means (i) for on-premise deployments, the number of physical servers in the computing environment on which the SOFTWARE is installed, or (ii) in a cloud computing environment, the number of compute instances on which the SOFTWARE runs. NVIDIA requires one SOFTWARE license per Server.
1.5 Authorized Users.
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.
If you are an academic institution you may allow users enrolled or employed by the academic institution to access and use the SOFTWARE from your secure network.
You are responsible for the compliance with the terms of this Agreement by your authorized users. Any act or omission that if committed by you would constitute a breach of this Agreement shall be deemed to constitute a breach of this Agreement if committed by your authorized users.
1.6 Pre-Release.
The SOFTWARE versions identified as alpha, beta, preview, early access or otherwise as pre-release may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, availability, and reliability standards relative to commercial versions of NVIDIA software and materials. Use of a pre-release SOFTWARE may result in unexpected results, loss of data, project delays or other unpredictable damage or loss.
You may use a pre-release SOFTWARE at your own risk, understanding that these versions are not intended for use in production or business-critical systems. As with any software in pre-release, it is highly recommended that you maintain full data backups for all your software and data.
NVIDIA may choose not to make available a commercial version of any pre-release SOFTWARE. NVIDIA may also choose to abandon development and terminate the availability at any time without liability.
1.7 Services.
Except as expressly indicated in an order, NVIDIA is under no obligation to provide support for the SOFTWARE or to provide any maintenance, updates, upgrades or other revisions to the SOFTWARE.
Unless revisions are provided with their separate governing terms, they are deemed part of the SOFTWARE licensed to you as provided in this Agreement.
1.8 Components Under Other Licenses.
The SOFTWARE may include NVIDIA or third-party components with separate legal notices or terms as may be described in proprietary notices accompanying the SOFTWARE, such as components governed by open-source software licenses. If and to the extent there is a conflict between the terms in this license and the license terms associated with a component, the license terms associated with the components control only to the extent necessary to resolve the conflict. Copyright to third-party software is held by the copyright holders indicated in the third-party software or license.
Audio/Video Encoders and Decoders. You acknowledge and agree that it is your sole responsibility to obtain any additional third party licenses required to make, have made, use, have used, sell, import, and offer for sale your products or services that include or incorporate any third party software and content relating to audio and/or video encoders and decoders from, including but not limited to, Microsoft, Thomson, Fraunhofer IIS, Sisvel S.p.A., MPEG-LA, and Coding Technologies as NVIDIA does not grant to you under this Agreement any necessary patent or other rights with respect to audio and/or video encoders and decoders.
1.9 Reservation of Rights.
NVIDIA reserves all rights, title and interest in and to the SOFTWARE not expressly granted to you under this Agreement.
2. Limitations.
The following license limitations apply to your use of the SOFTWARE:
2.1 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.
2.2 You may not modify or create derivative works of any portion of the SOFTWARE.
2.3 You may not copy (except as expressly authorized in this Agreement), sell, rent, sublicense, transfer or distribute the SOFTWARE.
2.4 You may not disclose the results of any benchmarking or other competitive analysis relating to the SOFTWARE without prior written permission from NVIDIA.
2.5 You may not bypass, disable, or circumvent any encryption, security, digital rights management or authentication mechanism in the SOFTWARE.
2.6 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.
2.7 Unless you have an agreement with NVIDIA for this purpose, you may not use the SOFTWARE with any system or application where the use or failure of the system or application 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. NVIDIA does not design, test or manufacture the SOFTWARE for these critical uses and NVIDIA shall not be liable to you or any third party, in whole or in part, for any claims or damages arising from such uses.
2.8 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. Ownership.
3.1 The SOFTWARE and its respective intellectual property rights 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.
3.2 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.
4. 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.
5. 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 THE NET AMOUNTS RECEIVED BY NVIDIA OR ITS AFFILIATES FOR YOUR USE OF UNEXPIRED LICENSES TO THE PARTICULAR SOFTWARE GIVING RISE TO THE CLAIM BEFORE THE LIABILITY AROSE (or up to US$10.00 if you obtained the SOFTWARE license at no charge). THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
These exclusions and limitations of liability shall apply regardless if NVIDIA or its affiliates have been advised of the possibility of such damages, and regardless of whether a remedy fails its essential purpose. These exclusions and limitations of liability form an essential basis of the bargain between the parties, and, absent any of these exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
6. Termination.
6.1 NVIDIA may terminate this Agreement upon notice if: (i) you fail to comply with any term of this Agreement and the non-compliance is not fixed within thirty (30) days following notice from NVIDIA (or immediately if you violate NVIDIA’s intellectual property rights); (ii) you commence or participate in any legal proceeding against NVIDIA with respect to the SOFTWARE; or (iii) you become the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if that petition or proceeding is not dismissed with prejudice within sixty (60) days after filing, or if you cease to do business.
6.2 Each SOFTWARE license ends at the earlier of the expiration or termination of the license or this Agreement. Each service ends at the earlier of the expiration or termination of the service or this Agreement, or upon the expiration or termination of the associated license and no credit or refund will be provided for any fees paid.
6.3 Upon any expiration or termination of this Agreement, a license or a service any amounts owed to NVIDIA become immediately due and payable and you agree to promptly discontinue use of the SOFTWARE and destroy all copies in your possession or control. Upon written request, you will certify in writing that you have complied with your commitments under this section. Upon any termination of this Agreement all provisions survive except for the licenses granted to you.
7. Data Collection.
You hereby acknowledge that the SOFTWARE may access and collect data in order to: (a) properly configure and optimize systems in which the SOFTWARE is installed for use with the SOFTWARE; (b) deliver content or service through the SOFTWARE; (c) improve NVIDIA products and services; and (d) provide automatic updates. Information collected by the SOFTWARE may include: (i) configuration data; (ii) operating system; (iii) installed applications and features; (iv) applications and features settings, performance and usage data.
NVIDIA may require certain personal information such as name, email address, and entitlement information in order to communicate with and to deliver or provide products or services to you.
The SOFTWARE may contain links to websites and services. NVIDIA encourages you to review the privacy statements on those sites and services that you choose to visit so that you can understand how they may collect, use and share your data. NVIDIA is not responsible for the privacy statements or practices of sites and services controlled by other companies or organizations.
You should review the NVIDIA Privacy Policy, located at https://www.nvidia.com/en-us/about-nvidia/privacy-policy/, which explains NVIDIA’s policy for collecting and using data, as well as visit the NVIDIA Privacy Center, located at https://www.nvidia.com/en-us/privacy-center/. To manage your consent and privacy preferences, please contact your administrator.
8. General.
If you wish to assign this Agreement or your rights and obligations, including by merger, consolidation, dissolution 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.
During the term of this Agreement and for a period of three (3) years thereafter, NVIDIA or an independent auditor will have the right to audit you during regular business hours to check for compliance with the terms of this Agreement. Audits will be conducted no more frequently than annually, unless non-compliance was previously found. If an audit reveals an underpayment, you will promptly remit the full amount of such underpayment to NVIDIA including interest that will accrue (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law. If the underpaid amount exceeds five percent (5%) of the amounts payable to NVIDIA during the audited period and/or if the audit reveals a material non-conformance with the terms of this Agreement, then you will reimburse NVIDIA’s reasonable audit costs. Further, you agree that the party delivering the SOFTWARE to you may share with NVIDIA information regarding your compliance with this Agreement.
Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) to the extent due to causes beyond its reasonable control for so long as such force majeure event continues in effect.
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.
Any notice delivered by NVIDIA to you under this Agreement will be delivered via mail, email or fax. You agree that any notices that NVIDIA sends you electronically 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 into this Agreement constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all prior negotiations or documentation between the parties relating to this subject matter. Any additional and/or conflicting terms on purchase order(s) or any other 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.
(v. October 10, 2022)