Texas Instruments Incorporated
Demonstration Software License Agreement
(Version 2 as of September 22, 2005)

This Demonstration Software License Agreement (“Agreement”) is a legal agreement between you (either an individual or an entity, Licensee”) and Texas Instruments Incorporated (“TI”), by and through its High Performance Analog business unit with offices located at 12500 TI Boulevard Dallas, Texas 75243. The “Licensed Materials” means the software programs TI has granted Licensee access to download or install, namely, bqEVSW and its components, bqTester and its components, bq Software Development, Evaluation and production tools, EV2300 drivers, and any “on-line” or electronic documentation associated with these programs, or any portion thereof, as well as any updates or upgrades to such software programs and documentation, if any, or any portion thereof, provided to you at TI’s sole discretion.

By downloading, installing, copying or otherwise using any of the Licensed Materials Licensee agrees to abide by the following provisions. This Agreement is displayed for you to read prior to using the Licensed Materials. Your use of the License Materials is subject to your acceptance of the provisions contained in this Agreement. If you choose not to accept or agree with these provisions, do not download or install the Licensed Materials, but, if applicable, instead delete them.

1. License Grant.

a. Subject to the terms of this Agreement, TI hereby grants to Licensee under all intellectual property rights owned or controlled by TI and embodied in the Licensed Materials, a non-transferable, non-exclusive, non-assignable, nonsublicensable license, with limited sublicensing rights as set forth below, to evaluate, test, use and modify the Licensed Materials and recompile the source code of the software programs to create and reproduce executable files solely for use or distribution in Licensee’s products and solely with the following TI devices: Advanced Gas Gauge Products (“TI Devices”). The sale, resale or distribution of Licensee’s product containing Licensed Materials or modifications thereto is expressly authorized for a high performance analog application; except however, the original source code contained in the software programs provided by TI cannot be copied or distributed in any form except as provided herein. Licensee may not sublicense or otherwise transfer or divulge the Licensed Materials to any third party or disclose to any third party the results of such evaluation or testing of the Licensed Materials, including any benchmarking results, except as provided herein.

b. The Licensed Materials may contain pre-release software that is not at the level of performance and compatibility of a final, generally available, product offering. Licensee acknowledges that such pre-release software included in the Licensed Materials may contain irregularities not found in production software.

c. Licensee acknowledges and agrees that: (1) certain Licensed Materials may be based on or implement industry recognized standards, and may contain and/or run software programs published by industry recognized standards bodies, and certain third parties may claim to own patents and copyrights that cover implementation of those standards; and (2) this Agreement does not convey a license or imply a right under any patent, copyright, trade secret, or other intellectual property right of any third party to use, reproduce, prepare derivative works of, or distribute the Licensed Materials or to make or have made products incorporating Licensed Materials, or to offer for sale, sell, import, export or otherwise distribute the Licensed Materials, or portions or derivatives thereof, for use with such products.

d. Except as expressly provided herein, no other license, express or implied, to any other TI or third party intellectual property rights is granted.

2. Use Restrictions. Licensee agrees that the following restrictions are an ongoing condition to the license granted Licensee under this Agreement: 

a. Licensee will not disclose the Licensed Materials, or any portion thereof, to any person (including consultants and subcontractors) other than Licensee’s employees who have a need to know. At TI’s request Licensee agrees to provide TI with a list of employees who have had access to the Licensed Materials.

b. Licensee may use the Licensed Materials for benchmarking internally against competing products, but Licensee will not publish or disclose any benchmarking data to any person other than Licensee employees who have a need to know. 

c. Use of the Software Program included with the Licensed Materials shall be restricted solely for use in conjunction with the TI Devices.

d. Licensee will not publish, disclose, display, provide, transfer or make available the Licensed Materials, or any portion thereof, to any third party, except as expressly provided herein.

e. Licensee may not install the Licensed Materials on a network server or otherwise use the Licensed Materials on more than one host computer at the same time. Licensee may either make one copy of the Licensed Materials for archival purposes or copy the Licensed Materials to another medium and Licensee may not otherwise copy or reproduce the Licensed Materials. In no event may Licensee use two copies or versions of the Licensed Materials on more than one host computer at the same time.

f. Licensee will maintain the software programs included with the Licensed Materials under password control protection. 

g. Except as expressly authorized under the Agreement, as amended, Licensee acknowledges and agrees that this Agreement neither conveys a license nor implies any right under any patent, or any other intellectual property right of TI, its third-party suppliers or any other third party, to use the Licensed Materials in any finished end-user or ready-to-use final product. 

h. Licensee will not mortgage, pledge or encumber the Licensed Materials in any way.

3. Limited Sublicense Right. Licensee may sublicense the Licensed Materials in a limited, nontransferable, non-exclusive sub license to make copies, display internally, and use internally the object code version of the Licensed Technology solely for use with TI Devices to its customers (“Customers”) who accept and agree to a written sublicense agreement that restricts use of the object code to TI Devices, and provides TI with terms no less restrictive than those set forth herein.

4. Intellectual Property Rights; No Reverse Engineering; Grantback License.

a. Subject to the license granted Licensee pursuant to this Agreement, TI and its licensors retain all right, title and interest in and to the Licensed Materials, including all intellectual property rights therein. The parties agree that all inventions, product improvements, and modifications to the Licensed Materials conceived of or made by TI that are based, either in whole or in part, on Licensee’s ideas, feedback, suggestions, or recommended improvements are the exclusive property of TI, and all right, title and interest in and to any such inventions, product improvements, and modifications will vest solely in TI.

b. The Licensed Materials contain copyrighted material, trade secrets and other proprietary information protected by copyright laws, international copyright treaties, and/or trade secret laws, as well as other intellectual property laws. To protect TI and its licensors’ rights in the Licensed Materials, Licensee agrees that it will not decompile, “unlock”, reverse engineer, disassemble, or otherwise translate the proprietary information included in the Licensed Materials to humanperceivable form except as allowed by applicable legislation and only to the extent necessary to achieve interoperability of an independently created program with other programs. In no event will Licensee alter, remove or destroy any copyright notice or other proprietary notices included in the Licensed Materials. TI reserves all rights not expressly granted herein.

c. Modifications made by Licensee to the Licensed Materials shall be promptly disclosed by Licensee to TI. Licensee shall own such modifications and hereby grants to TI a non-exclusive, irrevocable, paid-up license to use, reproduce and distribute such modifications without restriction, accounting or reference to Licensee. 

5. Confidential Information.

a. TI Confidential Information. The term “TI Confidential Information” shall mean (i) the Licensed Materials, and any portion thereof, (ii) any other information disclosed by TI to Licensee that is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, (iii) oral information disclosed by TI to Licensee pursuant to this Agreement, provided that it is designated as confidential at the time of disclosure and reduced to a written summary, which is marked in a manner to indicate its confidential nature, that is delivered by TI to Licensee within thirty (30) days after its oral disclosure, and (iv) any feedback from Licensee on TI Confidential Information or any information learned by Licensee, including benchmarking data, while using the Licensed Materials.

b. Exceptions. Notwithstanding the foregoing, “TI Confidential Information” does not include information that: (i) was publicly known at the time it was disclosed or becomes publicly known through no fault or action of the Licensee or any breach of any confidentiality obligation, (ii) was known to the Licensee, without restriction, at the time of disclosure, provided the Licensee can demonstrate such prior knowledge with adequate evidence, (iii) was independently developed by the Licensee without any use of the TI Confidential Information and by employees or other agents of the Licensee who have not been exposed to the TI Confidential Information, provided that the Licensee can demonstrate such independent development with adequate evidence, or (iv) becomes known to the Licensee, without restriction, from a source other than TI without breach of this Agreement by the Licensee and without, to the best of the Licensee’s knowledge, breach of another agreement or otherwise in violation of TI’s rights.

c. Obligations. Licensee agrees that it will (i) use TI Confidential Information only in connection with the use of the Licensed Materials and within the scope of the license set forth in Section 1, (ii) implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of any TI Confidential Information, and (iii) not disclose such TI Confidential Information to any third party. Without limiting the foregoing, Licensee agrees to hold TI Confidential Information in strict confidence and to use at least the same procedures and degree of care that it uses to prevent disclosure of its own confidential information of like importance but in no instance less than reasonable care. Licensee agrees to obtain executed confidentiality agreements with its employees having access to TI Confidential Information and to diligently take steps to enforce such agreements or be responsible for the actions of such employees in this respect. The parties agree that the employment agreements Licensee uses in the normal course of business shall satisfy the requirements of this section if they contain confidentiality obligations substantially similar to the obligations set forth above and if they apply to confidential information of third parties such as TI. Licensee agrees that it will promptly notify TI of and be liable for any loss, unauthorized disclosure or misappropriation of the Licensed Materials provided to Licensee by TI.

d. Exclusion. Notwithstanding the above, Licensee will not be liable to TI with regard to any TI Confidential Information that is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that Licensee provides sufficient advance notice of the required disclosure to allow TI a reasonable opportunity to seek a protective order or otherwise prevent or limit such disclosure. e. Manufacturing Subcontractors. Licensee may disclose the Licensed Materials to its manufacturing subcontractors who use product containing executable files derived from software program source code authorized in Section 1a above; provided however, Licensee must obtain a signed agreement from the subcontractor which obligates the subcontractor not to disclose or use Licensed Materials except upon terms that are no less restrictive than imposed under this Agreement.

6. Licensed Materials Support. TI shall have no obligation with respect to installation, support and maintenance of the Licensed Materials. TI may, from time to time and at its sole discretion, provide Licensee with updates to the Licensed Materials. If TI provides Licensee with updates to the Licensed Materials, Licensee agrees to destroy any and all prior versions of the Licensed Materials and to provide to TI written certification of said destruction. 

7. Compensation. No payment is due to TI from Licensee hereunder. TI agrees to waive any payment for the limited license to the Licensed Materials provided to Licensee hereunder. 

8. Term and Termination.

a. This Agreement is effective until terminated in accordance with the terms hereof. Upon termination of this Agreement, Licensee will at TI’s option, return the Licensed Materials to TI, or certify the destruction of the Licensed Materials by a written statement signed by an officer of the Licensee, and in either case including any modifications or derivatives thereof and all related documentation. 

b. In the event of a material breach of this Agreement by Licensee, TI may immediately terminate this Agreement if within twenty (20) days after receiving written notice of such breach, Licensee has not cured such breach. TI reserves the right to seek all other remedies available to it in law and equity. 

c. Notwithstanding anything in this Agreement to the contrary, TI may immediately terminate this Agreement without notice or liability and be entitled to immediate possession of the Licensed Materials, without prejudice to any other rights or remedies which TI may have, upon the occurrence of any of the following events: (i) Licensee is involved in any voluntary or involuntary bankruptcy proceeding or any other proceeding concerning insolvency, dissolution, cessation of operations, reorganization or indebtedness or the like and the proceeding is not dismissed within sixty (60) days; (ii) Licensee becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors; (iii) Licensee becomes a party to a merger or consolidation, transfers all or substantially all of its business and assets to a third party and in TI’s sole opinion, a material conflict of interest occurs with respect to the retention of Licensed Materials; or (iv) TI believes that improper use or disclosure of the Licensed Materials has occurred or is about to occur.

d. Injunctive Relief. Licensee recognizes and agrees the Licensed Materials constitute commercially valuable and Confidential Information of TI, and the design and development of such materials reflects the effort of skilled development experts and the investment of considerable time and money. Accordingly, Licensee acknowledges and agrees monetary damages will not be sufficient to compensate TI in the event of Licensee’s material breach or violation of this Agreement, and TI will be irreparably harmed by such breach or violation, and TI shall have the right to seek other remedies available to it in law and equity to remedy such breach or violation, including injunctive and equitable relief.

e. The parties agree that the following sections will survive any expiration or termination of this Agreement: 2 (Use Restrictions), 4 (Intellectual Property Rights; No Reverse Engineering; Grantback License), 5 (Confidential Information), 7 (Compensation), 9 (Warranty Disclaimer and Indemnity),10 (Liability Limitations), 11 (Governing Law), and 12 (General Provisions). 

9. Warranty Disclaimer and Indemnity.

a. THE LICENSED MATERIALSARE SUPPLIED “AS IS” AND WITH ALL FAULTS. TI DOES NOT WARRANT THAT THE USE OF THE LICENSED MATERIALSWILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET LICENSEE’S SPECIFIC REQUIREMENTS.

b. TI MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIALS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS AND LACK OF NEGLIGENCE. TI DISCLAIMS ANY WARRANTY OF QUIET ENJOYMENT, QUIET POSSESSION, AND NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS REGARDING THE LICENSED MATERIALS OR USE OF THOSE MATERIALS.

c. Licensee understands and acknowledges that the Licensed Materials has not been tested or certified by any government or industry regulatory organization or any other third party organization. FURTHERMORE, LICENSEE ACKNOWLEDGES THAT THE LICENSED MATERIALS ARE MERELY A DEMONSTRATION PLATFORM, NOT A SYSTEM DESIGN ENGINEERED FOR PRODUCTION. LICENSEE UNDERSTANDS AND AGREES THAT TI IS PROVIDING THE LICENSED MATERIALS AS AN EXAMPLE ONLY, AND TI DOES NOT EXPECT THAT LICENSEE WILL INCORPORATE THE LICENSED MATERIALS INTO LICENSEE PRODUCTS WITHOUT MODIFICATION. LICENSEE AGREES TO USE ITS INDEPENDENT ANAYSIS, EVALUATION, AND JUDGMENT IN DESIGNING ITS PRODUCTS. THE LICENSED MATERIALS INCLUDED IN THE LICENSED MATERIALS ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE LICENSED MATERIALS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 

d. Licensee shall defend any claim, suit or proceeding brought against TI insofar as such claim, suit or proceeding is based on (i) an infringement allegation arising from use by Licensee of the Licensed Materials or any modification by Licensee thereof in combination with any device, software or equipment not provided by TI; (ii) use of the Licensed Materials by Licensee in a manner or for an application other than for which it was designed or intended; or (iii) Licensee’s modifications to the Licensed Materials to the extent that the modifications are the basis of the claim, suit or proceeding; or based upon Licensee’s breach of any Licensee warranty or negligence to a third party; and Licensee will pay those costs, damages and liabilities (including settlement costs) finally awarded or agreed-upon as the result of any suit based on such claim, provided Licensee (a) is promptly notified of such claim, suit or proceeding, (b) is given all evidence in TI’s possession, custody or control relating to such claim, suit or proceeding, and (c) is allowed to control the defense thereof and all negotiations for its settlement or compromise. If Licensee requests in writing for assistance for such defense from TI, Licensee will pay for reasonable expenses incurred by TI in providing such assistance.

e. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE WARRANTY DISCLAIMERS AND INDEMNITIES SET FORTH ABOVE ARE MATERIAL TO THIS AGREEMENT AND REFLECT THE CONSIDERATION GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND EACH PARTY’S DECISION TO ENTER INTO THIS AGREEMENT. 

10. Liability Limitations. 

a. IN NO EVENT SHALL TI, OR ANY APPLICABLE LICENSOR, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, IN CONNECTION WITH OR ARISING OUT THE LICENSES GRANTED HEREIN OR LICENSEE’S USE OF THE LICENSED MATERIALS, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND REGARDLESS OF WHETHER TI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, OR LOSS OF USE OR INTERRUPTION OF BUSINESS.

b. IN NO EVENT SHALL TI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER OF THE FEES PAID TO TI BY LICENSEE UNDER THIS AGREEMENT OR FIVE HUNDRED DOLLARS ($500). THIS LIMITATION APPLIES REGARDLESS OF WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.

c. LICENSEE ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE MATERIAL AND ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without reference to conflict of laws principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA) as may be enacted by the State of Texas. The parties agree that non-exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within courts located in the State of Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and either party may seek injunctive relief in any United States or foreign court.

12. General Provisions.

a. Relationship of the Parties. The parties hereto are independent contractors. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment or agency relationship.

b. Independent Development. The parties agree that Licensee will not be prohibited from developing or acquiring any similar technology, provided that Licensee has not breached the terms of this Agreement, and provided further that nothing in this Agreement shall be construed or interpreted as a license from TI under any patents, copyrights, trade secrets or other intellectual property rights with respect to such independently developed or acquired technologies.

c. Entire Agreement. The terms and conditions of this Agreement, including its exhibits, contains the entire agreement between the parties and merges and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions concerning the subject matter hereof. Neither party shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. No oral explanation or oral information by either party hereto shall alter the meaning or interpretation of this Agreement. No amendments or modifications to this Agreement shall be effective unless in writing signed by an authorized representative of both parties. These terms and conditions will prevail notwithstanding any different, conflicting or additional terms and conditions that may appear in any purchase order, acknowledgement or other writing not expressly incorporated into this Agreement.

d. Assignment. Neither party may directly or indirectly sell, assign, transfer, delegate, convey, pledge, encumber or otherwise dispose of this Agreement, or any of the licenses, rights, duties or obligations under this Agreement, without the prior written consent of the other party. Any attempted assignment in violation of this section will be null and void.

e. Waiver. Failure of either party to enforce any term of this Agreement shall not be deemed or considered a waiver of future enforcement of that or any other term in this Agreement. The parties agree that no term of this Agreement may be considered waived and no breach excused by either party unless made in writing by the other party. No consent, waiver, or excuse by either party, express or implied, constitutes a subsequent consent, waiver or excuse.

f. Severability. If any provision of this Agreement is determined by a court to be unenforceable, the parties agree that the provision will be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted from this Agreement, and the remainder of the Agreement will continue in effect.

g. Export Control. Licensee hereby acknowledges and agrees that unless prior authorization is obtained from the U.S. Department of Commerce, or other competent government authorities in the case of non-U.S. export laws and/or regulations, neither Licensee nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), or any controlled products restricted by other applicable national laws and/or regulations, received from TI, or export, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR or non-U.S. laws and/or regulations. The assurances provided herein by Licensee are furnished to TI by Licensee in compliance with Part 740 (Technology and Software Under Restriction) of the EAR. Licensee further agrees to obtain any necessary export license or other documentation prior to the exportation or reexportation of any product, technical data, software or software source code acquired from TI under this contract or any direct product of such technical data, software or software source code. Accordingly, Licensee shall not sell, export, reexport, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by US or applicable non-US laws. Further, Licensee shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from Licensee with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals cannot be obtained, TI may terminate, cancel or otherwise be excused from performing any obligations it may have under this Agreement.
