NVIDIA SOFTWARE LICENSE AGREEMENT

FOR GOOGLE VIRTUAL MACHINE IMAGE

IMPORTANT NOTICE -- READ CAREFULLY: This Software License Agreement ("SLA") is the agreement which governs use of the Google Virtual Machine Image (VMI), which includes NVIDIA Tesla driver, CUDA runtime and NVIDIA-docker computer software and associated materials (“Licensed Software”) provided by NVIDIA Corporation (“NVIDIA”). By downloading, installing, copying, or otherwise using the Licensed Software, you agree to be bound by the terms of this SLA. IF YOU ARE ENTERING INTO THIS SLA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS SLA, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON’T HAVE SUCH AUTHORITY, OR IF YOU DON’T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS SLA, THEN NVIDIA DOES NOT AGREE TO LICENSE THE LICENSED SOFTWARE TO YOU, AND YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE IT.

1. LICENSE. Subject to the terms of this SLA, NVIDIA hereby grants you a non-exclusive, non-transferable license, without the right to sublicense, during the term of this SLA, to access and use the Licensed Software in a Google cloud services virtual machine instance. Your rights in and to the Licensed Software are limited to those expressly granted under this SLA and no other licenses are granted whether by implication, estoppel or otherwise. NVIDIA reserves all rights, title and interest in and to the Licensed Software not expressly granted under this SLA.

2. LICENSE RESTRICTIONS. You agree that you will not (nor authorize third parties to): (i) reverse engineer, decompile, disassemble or attempt to derive the source code, underlying ideas, algorithm or structure of software provided to you in object code form; (ii) sell, transfer, assign, distribute, rent, loan, lease, sublicense or otherwise make available the Licensed Software or its functionality to third parties; (iii) modify, translate or otherwise create any derivative works of any Licensed Software; (iv) remove, alter, cover or obscure any proprietary notice that appears on or with the Licensed Software or any copies thereof; (v) use the Licensed Software, or allow its use, transfer, transmission or export in violation of any applicable export control laws, rules or regulations; (vii) use the Licensed Software for the purpose of developing competing products or technologies or assisting a third party in such activities; (viii) use the Licensed Software with any system or application where the use or failure of such system or application can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss including, without limitation, use in connection with any nuclear, avionics, navigation, military, medical, life support or other life critical application (“Critical Applications”), unless the parties have entered into a Critical Applications agreement; or (ix) use the Licensed Software in any manner that would cause the Licensed Software to become subject to an Excluded License. “Excluded License” includes, without limitation, a software license that requires as a condition of use, modification, and/or distribution that software be (a) disclosed or distributed in source code form; (b) be licensed for the purpose of making modifications; or (c) be redistributable at no charge. Nothing in this SLA shall be construed to give you a right to use, or otherwise obtain access to, any source code from which the software or any portion thereof is compiled or interpreted. You acknowledge that NVIDIA does not design, test, manufacture or certify the Licensed Software for use in the context of a Critical Application 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 use. 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 you and your or your permitted users use of Licensed Software outside of the scope of this SLA or any other breach of the terms of this SLA.

3. THIRD PARTY LICENSE OBLIGATIONS. The Licensed Software may come bundled with, or otherwise include or be distributed with, third party software licensed by an NVIDIA supplier and/or open source software provided under an open source license (Open Source Software) (collectively, “Third Party Software”). Notwithstanding anything to the contrary herein, Third Party Software is licensed to you subject to the terms and conditions of the software license agreement accompanying such Third Party Software whether in the form of a discrete agreement, click-through license, or electronic license terms accepted at the time of installation and any additional terms or agreements provided by the third party licensor (“Third Party License Terms”). Use of the Third Party Software by you shall be governed by such Third Party License Terms, or if no Third Party License Terms apply, then the Third Party Software is provided to you as-is for use in or with the Licensed Software and not otherwise used separately. Copyright to Third Party Software is held by the copyright holders indicated in the Third Party License Terms.

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 SLA any necessary patent or other rights with respect to audio and/or video encoders and decoders.

4. OWNERSHIP. The Licensed Software, and the respective intellectual property rights therein, is and will remain the sole and exclusive property of NVIDIA or its licensors. NVIDIA’s licensors are intended third party beneficiaries with the right to enforce provisions of this SLA with respect to their Confidential Information and/or intellectual property rights.

5. FEEDBACK. You have no obligation to provide suggestions, feature requests, comments or other feedback regarding the Licensed Software, including possible enhancements or modifications thereto (collectively, “Feedback”) to NVIDIA. However, NVIDIA and/or its affiliates have a perpetual, non-exclusive, irrevocable license to use, reproduce, distribute or otherwise commercialize any Feedback that you voluntarily provide without the payment of any royalties or fees to you. NVIDIA has no obligation to respond to Feedback or to incorporate Feedback into the Licensed Software.

6. NO WARRANTIES. THE LICENSED SOFTWARE IS PROVIDED BY NVIDIA “AS IS” AND “WITH ALL FAULTS,” AND NVIDIA EXPRESSLY DISCLAIMS 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, AND NON-INFRINGEMENT. NO WARRANTY IS MADE BY NVIDIA ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.

7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA OR ITS LICENSORS 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 SLA OR THE USE OR PERFORMANCE OF THE LICENSED SOFTWARE PROVIDED BY NVIDIA UNDER THIS SLA, 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 TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS SLA EXCEED THE NET AMOUNTS RECEIVED BY NVIDIA FOR YOUR USE OF THE PARTICULAR LICENSED SOFTWARE DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE (or up to US$10.00 if you acquired the Licensed Software for no charge). THE NATURE OF THE LIABILITY, THE NUMBER OF CLAIMS OR SUITS OR THE NUMBER OF PARTIES WITHIN YOUR ENTERPRISE THAT ACCEPTED THE TERMS OF THIS SLA SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NVIDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. The disclaimers, exclusions and limitations of liability set forth in this SLA for10m an essential basis of the bargain between the parties, and, absent any such disclaimers, exclusions or limitations of liability, the provisions of this SLA, including, without limitation, the economic terms, would be substantially different.

8. TERMINATION. This license terminates automatically: (i) if you breach any term of this SLA; or (ii) if you commence or participate in any legal proceeding against NVIDIA, with respect to the Licensed Software that is the subject of the proceeding during the pendency of such legal proceeding. Upon the termination of this SLA, you must promptly discontinue use of the Licensed Software, and you must promptly destroy or return to NVIDIA all copies of the Licensed Software and all portions thereof in your possession or control. Upon written request, you will certify in writing that you have complied with your obligations under this section. Upon expiration or termination of this SLA all provisions survive except for the license grant provision.

9. CONSENT TO COLLECTION AND USE OF INFORMATION.

You hereby agree and acknowledge that the software may access and collect non-personally identifiable information about your computer systems in order to properly optimize such systems for use with the software. To the extent that you use the software, you hereby consent to all of the foregoing, and represent and warrant that you have the right to grant such consent. In addition, you agree that you are solely responsible for maintaining appropriate data backups and system restore points for your systems, and that NVIDIA will have no responsibility for any damage or loss to such systems (including loss of data or access) arising from or relating to (a) any changes to the configuration, application settings, environment variables, registry, drivers, BIOS, or other attributes of the systems (or any part of such systems) initiated through the software; or (b) installation of any software or third party software patches initiated through the software.

In connection with the receipt of the Licensed Software you may receive access to links to third party websites and services and the availability of those links does not imply any endorsement by NVIDIA. 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 personal information of individuals. NVIDIA is not responsible or liable for: (i) the availability or accuracy of such links; or (ii) the products, services or information available on or through such links; or (iii) the privacy statements or practices of sites and services controlled by other companies or organizations. 

To the extent that you provide to NVIDIA during registration or otherwise personal information, you acknowledge that such information will be collected, used and disclosed by NVIDIA in accordance with NVIDIA's privacy policy, available at URL http://www.nvidia.com/object/privacy_policy.html.

10. GENERAL.

This SLA constitutes the entire agreement of the parties with respect to the subject matter hereto and supersedes all prior negotiations, conversations, or discussions between the parties relating to the subject matter hereto, oral or written, and all past dealings or industry custom. Any additional and/or conflicting terms and conditions on purchase order(s) or any other documents issued by you are null, void, and invalid. Any amendment or waiver under this SLA must be in writing and signed by representatives of both parties.

This SLA and the rights and obligations thereunder may not be assigned by you, in whole or in part, including by merger, consolidation, dissolution, operation of law, or any other manner, without written consent of NVIDIA, and any purported assignment in violation of this provision shall be void and of no effect. NVIDIA may assign, delegate or transfer this SLA and its rights and obligations hereunder, and if to a non-affiliate you will be notified.

Each party acknowledges and agrees that the other is an independent contractor in the performance of this SLA.

Neither party will be responsible for any failure or delay in its performance under this SLA to the extent due to causes beyond its reasonable control for so long as such force majeure event continues in effect.

This SLA will be governed by and construed under the laws of the State of Delaware and the United States without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the personal jurisdiction of the federal and state courts located in Santa Clara County, California. You acknowledge and agree that a breach of any of your promises or agreements contained in this SLA may result in irreparable and continuing injury to NVIDIA for which monetary damages may not be an adequate remedy and therefore NVIDIA is entitled to seek injunctive relief as well as such other and further relief as may be appropriate. If any court of competent jurisdiction determines that any provision of this SLA is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect. Unless otherwise specified, remedies are cumulative.

The Licensed 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 set forth in this SLA pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(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.

You acknowledge that the Licensed Software described under this SLA is subject to export control under the U.S. Export Administration Regulations (EAR) and economic sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC). Therefore, you may not export, reexport or transfer in-country the Licensed Software without first obtaining any license or other approval that may be required by BIS and/or OFAC. You are responsible for any violation of the U.S. or other applicable export control or economic sanctions laws, regulations and requirements related to the Licensed Software. By accepting this SLA, 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 Licensed Software.

Any notice delivered by NVIDIA to you under this SLA will be delivered via mail, email or fax. 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.