Pre-release agreement

SCOPE OF USE.

You may use the Pre-Release Product solely for the purposes of evaluating Numonyx Pre-Release Products and developing product(s) incorporating one or more Numonyx products. You agree that you will not offer for sale, sell, transfer or otherwise distribute the Pre-Release Product in any form to any third party (including, without limitation, any end customers, resellers or distributors of your products) without the express, prior written approval of Numonyx. The Pre-Release Product may not be sold, leased, rented, reverse engineered, disassembled, or used for any other purposes whatsoever.

DEVELOPMENT PLATFORM.

You understand that the Pre-Release Product is still under development by Numonyx and/or Numonyx suppliers. It may not be fully tested, lack regulatory approvals, and contain bugs or errors. Accordingly, you agree that the Pre-Release Product is not suitable for commercial release in its current state. Numonyx is not under any obligation to develop and/or release or offer for sale or license a final product based upon either the Pre-Release Product or any development platform related thereto and may unilaterally elect to abandon the Pre-Release Product or any such development platform at any time and without any obligation or liability whatsoever to you.

LICENSE.

Numonyx herewith grants to You a limited, non-transferable, non-exclusive license under Numonyx trade secrets and copyrights to use the Pre-release Product under the terms of this Agreement for the sole purpose to enable You to design, develop, and debug products that are designed to incorporate or otherwise designed to work in conjunction with such Numonyx Pre-release Product and for no other purpose.

If software is included as part of the Pre-Release Product (“Pre-Release Software”), Numonyx grants you a non-exclusive, non-transferable, limited copyright license to use the Pre-Release Software solely for the purposes stated above. Any third party software shall be governed by the terms of this Agreement; provided, however, that any open source software modules shall be governed solely in accordance with the terms of the accompanying open source software license agreement. You may not separate the Pre-Release Software from the Pre-Release Product, nor may you copy, distribute, reproduce, use, sublicense or allow access to the Pre-Release Software unless expressly agreed to in advance and in writing by an authorized representative of Numonyx. You may not, nor may you assist any other person or entity to, modify, translate, convert to another programming language, decompile, reverse engineer, or disassemble any portion of the Pre-Release Software or otherwise attempt to derive source code from the Pre-Release Software or any internal data files generated by the Pre-Release Software. Under no circumstances may you incorporate any open source software or otherwise make such open source software part of the Pre-Release Software.

REVERSE ENGINEERING.

You expressly agree that you shall not perform, nor allow, authorize or assist others, in reverse engineering, decompilation, disassembly, photographic and/or video reproduction, or the like upon the Pre-Release Product to attempt to learn information about the internal architecture, design, operation, manufacture, features, or functionality of any Numonyx Pre-release Product , beyond that information provided to you by or on behalf of Numonyx. Moreover, You grant Numonyx the right to make a reasonable audit upon reasonable suspicion of breach to verify compliance with this Agreement. Nothing herein shall be construed to limit your ability to design, develop, debug, optimize and/or support the development of products without use of or access to the Pre-Release Product .

OWNERSHIP.

All right, title and interest in the Numonyx intellectual property embodied in the Pre-Release Product, Pre-Release Software and accompanying materials, if any, are owned by Numonyx and may be protected by copyright, trademark, patent and trade secret law and international treaties. Any rights, express or implied, in the Numonyx intellectual property embodied in the foregoing, other than those specified in this Agreement, are reserved by Numonyx and its suppliers and licensors. Nothing in this Agreement shall constitute a license of all or any part of the Pre-Release Product or of any right to sell, make, or have made the Pre-Release Product. You will keep the Pre-Release Product free of liens, attachments, and other encumbrances. You agree not to remove any proprietary notices and/or any labels from the Pre-Release Product and accompanying materials, if any (including but not limited to the engineering sample label), without prior written approval by Numonyx.

RESTRICTION ON MOVEMENT.

You shall not lease, sublease, sell, rent, assign, or otherwise transfer, distribute or dispose of the Pre-Release Product and any accompanying materials. You shall not remove, move, or relocate the Pre-Release Product, including any accompanying material, from its “Ship To Location” without prior written approval from Numonyx.

RISK OF LOSS.

Risk of loss or damage to the Pre-Release Product is transferred to you immediately upon delivery of the Pre-Release Product to you.

CONFIDENTIALITY.

The Pre-Release Product, including the Pre-Release Software and accompanying materials, if any, contains confidential and/or proprietary information of Numonyx and is subject to the Corporate Nondisclosure Agreement (CNDA) appended hereto as Addendum A, When you open the package containing Pre-Release Product, the CNDA is hereby automatically entered between you ( the “Participant”) and, Numonyx, solely for purposes of this Pre-Release Agreement . Accordingly, you agree that you will not, nor will you authorize or permit any third party to, distribute, transfer, assign, sublicense, or otherwise disclose to any third party the Pre-Release Product or any part thereof or any other confidential or proprietary information of Numonyx provided in connection herewith, except as otherwise expressly provided in this Agreement.

Without limiting the above, you may disclose engineering samples (excluding evaluation boards and evaluation systems) that are included in the Pre-Release Product to third-party consultants or subcontractors (“Contractors”) who agree to be bound by written non-disclosure terms that are no less restrictive than those set forth in this Agreement and the CNDA, provided that you will be liable for any breach of those terms by such Contractors.

FEEDBACK.

To assist Numonyx in identifying problems with and making improvements to the Pre-Release Product, Numonyx invites your feedback concerning any bugs, errors or other problems discovered during the course of your evaluation or use of the Pre-Release Product. Numonyx shall have unrestricted rights to use such feedback to improve or modify the Pre-Release Product.

EXCLUSION OF WARRANTIES.

THE PRE-RELEASE PRODUCT IS NON-QUALIFIED AND, AS SUCH, IS PROVIDED "AS IS" AND POSSIBLY WITH FAULTS. UNLESS EXPRESSLY AGREED OTHERWISE, NUMONYX DISCLAIMS ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Numonyx does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Pre-Release Software. You assume all liability, financial or otherwise, associated with the use or other disposition of the Pre-Release Product.

NO CERTIFICATIONS.

Regulatory approvals for the Pre-Release Product (such as UL or FCC) have not been obtained, and the Pre-Release Product may therefore not be certified for use in certain countries.

CHANGE, CANCELLATION.

The Pre-Release Product contains “alpha” or “beta” designated pre-release features, which may not be fully functional and which Numonyx may substantially modify in producing any “Production-level” version of the Pre-Release Product. Numonyx can provide no assurance that it will ever produce or make generally available a “Production-level” version of the Pre-Release Product.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL NUMONYX OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRE-RELEASE PRODUCT NOR FOR PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND, EVEN IF NUMONYX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TERMINATION, DUTY TO RETURN.

Unless otherwise agreed by Numonyx, upon the earlier of written request of Numonyx or expiration or other termination of this Agreement, you will immediately return the Pre-Release Product and all copies of the Pre-Release Software to Numonyx. Numonyx reserves the right to repossess any Pre-Release Product not timely returned or to charge a fee for failure to return.

APPLICABLE LAW.

Claims arising under this Agreement shall be governed by the laws of Delaware, excluding its principles of conflict of laws and excluding the United Nations Convention on Contracts for the Sale of Goods.

ASSIGNMENT.

Neither this Agreement nor any rights or obligations hereunder may be assigned or delegated (whether by operation of law or otherwise) by you without Numonyx prior written consent.

WAIVER AND AMENDMENT.

No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by an officer of Numonyx. No failure or delay in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy. Without limiting the foregoing, terms and conditions on any purchase orders or similar materials submitted by you to Numonyx, and any terms contained in Numonyx standard acknowledgment form that are in conflict with this Agreement , shall be of no force or effect.

SEVERABILITY.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

EXPORT RESTRICTIONS.

You acknowledge that the Pre-Release Product is subject to applicable import and export regulations of the United States and of the countries in which you transact business, specifically including U.S. Export Administration Act and Export Administration Regulations. You shall comply with such laws and regulations, as well as all other laws and regulations applicable to the Pre-Release Product. Without limiting the generality of the foregoing, you agree that you will not export, re-export, transfer or divert any of the Pre-Release Product or the direct Pre-Release Product thereof to any restricted place or party in accordance with U.S. export regulations. Note that Pre-Release Product containing encryption may be subject to additional restrictions.