End-User License Agreement
(EULA)

This End-User License Agreement (“EULA”) is entered into by and between the business entity that will use the Software (“You”) and Harmonic Inc. if you are located in the USA, Harmonic Italy S.R.L. if you are located in Italy, Harmonic France SAS if you are located in France or Harmonic International GmbH if you are located in any other countries, (“Harmonic”).

This EULA governs Your use of: (i) Harmonic stand-alone software or software installed on Harmonic hardware provided to You pursuant to a purchase contract, quote, order form, invoice or online procurement process (each, an “Order”); (ii) associated software license keys, if any; (iii) updates to such software; (iv) the documentation for such software; and (v) all copies of the foregoing (collectively, “Software”).

If You accept this EULA, or if You install or use the Software, then You agree to this EULA. If You have executed a separate written agreement that includes licensing terms that govern use of the Software (“Existing Agreement”), the Existing Agreement will govern. If You accept this EULA or install or use the Software on behalf of a business entity, then You represent that You have authority to take those actions, and this EULA will be binding on that business entity unless the entity already has a Pre-Existing Agreement. If You do not agree to this EULA, do not install or use the Software. 

If You are a business entity and You purchase Software from a third party (“Reseller”) who sublicenses the Software to You under the terms of an agreement between You and such Reseller (a “Sublicense Agreement”), then the terms of Your Sublicense Agreement with the Reseller shall govern Your use of the Software and not this EULA. Resellers may only grant rights and must pass through conditions, consistent with this EULA.

Thus, even though Your Sublicense Agreement is between you and the Reseller, by installing or using the Software, You acknowledge and agree that: (i) any license rights in the Sublicense Agreement that are greater than the license rights in this EULA shall not apply; (ii) any license conditions in this EULA that are not contained in the Sublicense Agreement apply to You; (iii) the limitations of liability set forth in this EULA will apply in favor of Harmonic, its affiliates and suppliers despite the existence of a Sublicense Agreement; and (iv) Harmonic is a third-party beneficiary of the Sublicense Agreement and is entitled to exercise and enforce all of the Reseller’s rights and benefits under that Sublicense Agreement.

1) License Grant.

Subject to the payment of applicable consideration and Your compliance with the terms and conditions of this EULA, and except as otherwise set forth in the Order, You are hereby granted a non-transferable, non-sublicensable, nonexclusive, fully paid-up, perpetual license to use the Software for Your own business purposes.

2) License Restrictions.

You are entitled to use the Software in accordance with the terms set forth in the Order. If at any time You are aware that you have used any Software in excess of the limitations set forth in the Order, You shall promptly notify Harmonic of such use and pay any additional license fees at the then current rate for such Software or for the features or functionality thereof actually used by You.

You receive no title or ownership rights to any Software or related documentation. This EULA does not entitle You to the receipt or use of, or access to, Software source code or any right to reproduce or modify the Software or any related documentation. You shall not (i) decompile, disassemble, reverse assemble, unlock, reverse engineer or otherwise attempt to gain access to the Software source code, (ii) sublicense, lease, sell, rent, lend or transfer any Software or (iii) remove the Software from any hardware product without Harmonic’s consent. You will contact Harmonic for instructions in the event You intend to decommission, replace or dispose of any products containing Software.

3) Acknowledgement.

You acknowledge and agree that (i) You may need to separately and independently procure for yourself licenses to Excluded Patents from applicable third-party licensors, and (ii) this EULA does not grant You any license to Excluded Patents. “Excluded Patents” means those patents or associated patent licenses that are (i) necessary for or otherwise relate to the use or deployment of video and audio compression technologies, as standardized by the ISO/IEC Motion Picture Experts Group (MPEG), the ITU Telecommunication Standardization Sector (ITUT), and/or the Society of Motion Picture and Television Engineers (SMPTE) and/or; by ISO/IEC MPEG respectively; or RF modulation as standardized by DVB/ETSI) and (ii) not required at the point of manufacture or sale of a product.

4) Other Software.

You acknowledge and agree that (i) third-party software and/or open source software (“Third Party Software”) may be incorporated, embedded or otherwise included in, or provided in connection with the Software, (ii) additional or different terms and conditions may apply with respect to such Third Party Software and (iii) use of such Third Party Software is subject to such additional or different terms and conditions to which You hereby agree. Third-Party Software license terms may be provided with the documentation accompanying a Software or otherwise published by Harmonic, or is available upon request. The source code for open-source software components included in Software is available from Harmonic upon request.

5) Trust-based licensing model.

If the Software licensed under this EULA does not include programmatic license enforcement, it is Your responsibility to ensure compliance with this EULA, including, without limitation, all applicable limitations set forth herein or in the Order. By adopting a trust-based licensing model, Harmonic does not waive its right to enforce any aspect of this EULA at any time. Additionally, any Harmonic knowledge of Your use of the Software beyond the scope of the license shall not operate as a waiver of Harmonic’s rights to enforce the terms of this EULA under any legal or equitable doctrine.

6) Compliance Verification.

Notwithstanding Section 5., You agree to use the technological measures contained in a Software that, working in conjunction with Harmonic computer servers through an Internet connection established by You, are designed to verify the use of the Software (“Authentication System”) at least once every 12 months for certain Software licensed hereunder, as instructed in the Software documentation, in order to enable Harmonic (i) to monitor Your use of the Software and (ii) to collect all data in connection with the use of a Software by You (“Software Usage Data”) and (iii) to verify the Software is used in compliance with this EULA, including, without limitation, all applicable limitations set forth herein or in the Order. By using the Authentication System, You acknowledge and consent to the collection and processing (including the disclosure and international transfer) of the Software Usage Data for the purpose stated in this Section.

If for reasonable reasons, You cannot use the Authentication System at least once every 12 months for the purpose of this Section, You agree Harmonic shall have the right, at Your expense, to audit Your use of the Software on at least 15 business days’ advance notice, during Your normal business hours and no more frequently than once every 12 months, which audit shall not unreasonably interfere with Your business.

7) Support Services Not Included.

If You purchase maintenance and support for Software, such services are identified in Your Order and will be provided under a separate services agreement.

8) Termination.

Harmonic may terminate this EULA if You commit a material breach of this EULA and fail to cure such breach within thirty (30) days following Your receipt of notice of the breach from Harmonic. This right to terminate applies accordingly if Harmonic or the Reseller from whom You made Your purchase does not receive timely payment for the licenses to the Software or for the hardware on which the Software is installed if any. When this EULA terminates, all licenses granted automatically terminate and You must immediately cease use of the Software and return or destroy all copies of the Software. Except as otherwise agreed by Harmonic, You will not get a refund from Harmonic if this EULA is terminated. Rights and obligations under Sections of this EULA that, by their nature should survive, will survive termination, as well as obligations for payment.

9) Warranty Disclaimer.

Under this EULA, Harmonic provides neither any warranties for the Software nor does it provide support for the Software. Your rights under any warranties and any support entitlements for Software acquired for a fee are solely between You and the Reseller or Harmonic and are defined under the commercial terms agreed between You and such selling entity. Accordingly, except as otherwise offered by Harmonic, the Software is provided by Harmonic under this EULA “As Is” without any warranties or conditions. To the maximum extent permitted by applicable law, Harmonic, on behalf of itself and its affiliates and suppliers: (a) makes no express warranties or conditions related to the Software; (b) disclaims all implied warranties and conditions related to the Software, including merchantability, fitness for a particular purpose, title, and non-infringement; and (c) disclaims any warranty or condition arising by statute, operation of law, course of dealing or performance, or usage of trade. Harmonic does not warrant uninterrupted or error-free operation of the Software.

10) Limitation of Liability.

Limitation on Damages. The limitations, exclusions, and disclaimers set forth in a Pre-Existing Agreement or Harmonic Terms and Conditions that apply to your Order (in each case, the “Order Terms”) shall apply to all disputes, claims or controversies (whether in contract, tort or otherwise) between You and Harmonic related to or arising out of: (a) this EULA; (b) the breach, termination or validity of this EULA; or (c) any Orders (each, a “Dispute”). In the absence of applicable Order Terms, the terms set forth in this Section shall apply to all Disputes.

Limitation on Direct Damages. Except for Your obligation to pay for the Software, or for Your violation of the License Grant and License Restrictions set forth herein or of Harmonic’s intellectual property rights, the total liability of You and Harmonic (including Harmonic’s affiliates and suppliers) arising out of any Dispute is limited to the amount You paid for the Software that is the subject of the Dispute. Notwithstanding anything otherwise set forth above, Harmonic and its affiliates have no liability for any direct damages resulting from Your use or attempted use of Third Party Software.

Disclaimer of Certain Other Damages. Except for Your obligation to pay for the Software, or for Your violation of the License Grant and License Restrictions set forth herein or of Harmonic’s intellectual property rights, neither You nor Harmonic (including Harmonic’s affiliates and suppliers) shall have any liability under this EULA for special, consequential, exemplary, punitive, incidental or indirect damages, or for lost profits, loss of revenue, loss or corruption of data, loss of use or procurement of substitute products or services.

11) General

Assignment: You will not assign or transfer (including but not limited to by operation of law, merger, or reverse merger) this EULA or any portion thereof without the prior written consent of Harmonic, and any such attempt at assignment/transfer will be void. Harmonic will be entitled to assign or transfer all or any portion of this EULA upon written notification to You.

Governing Law and Disputes:

  1. If You are located in the USA, this EULA will be governed by and construed in accordance with the laws of the State of California, United States of America. The United Nations Convention on the International Sale of Products will not apply. Any suit hereunder will be brought solely in the federal or state courts of Santa Clara County, California, USA, and You hereby submit to personal jurisdiction in those courts.
  2. If You are located in another country, this EULA will be governed by and construed under the laws of Switzerland. The United Nations Convention on the International Sale of Products will not apply. Under Swiss law, any suit hereunder will be brought solely in the ordinary courts of Fribourg, Switzerland, and You hereby submit to the personal jurisdiction thereof.

Waiver. A party’s waiver of a breach of any provision of this EULA shall not constitute a waiver of any other provision or any subsequent breach.

Severability. If any portion of this EULA is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this EULA, and the parties shall seek in good faith to agree to substitute for the invalid provision a valid provision that most closely approximates its terms.

Entire Agreement. This EULA supersedes all proposals, oral or written, all negotiations, conversations or discussions between the parties relating to this EULA. You represent that You have not relied on any representation or warranty other than those contained herein in entering into this EULA. The terms and conditions of this EULA contain the entire understanding and agreement of the parties with
respect to the subject matter hereof.