Last updated: November 13th, 2020
CAREFULLY READ THIS XILINX APP STORE AGREEMENT (“AGREEMENT”). BY CLICKING THE “ACCEPT” OR “AGREE” BUTTON, OR BY PROMOTING, LICENSING, GRANTING ACCESS TO, OR SELLING CONTENT ON THE XILINX APP STORE, OR OTHERWISE ACCESSING THE XILINX APP STORE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. “YOU or YOUR” MEANS THE CORPORATION OR OTHER LEGAL ENTITY WHICH HAS BEEN GRANTED ACCESS TO PROMOTE, LICENSE, GRANT ACCESS TO, OR SELL CONTENT ON THE XILINX APP STORE. “XILINX” MEANS XILINX, INC., A DELAWARE CORPORATION. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE “ACCEPT” OR “AGREE” BUTTON, AND DO NOT ACCESS OR USE THE XILINX APP STORE.
Terms capitalized but not defined in this Agreement shall have the meanings as specified in the Customer Marketplace Seller Agreement between you and Accelize (“Marketplace Seller Agreement”).
“Xilinx App Store” shall mean the software distribution platform operated by Accelize located at www.xilinx.com/products/app-store, as it may be updated from time to time.
The Xilinx App Store service is provided and operated by Accelize. Xilinx is not involved with transactions conducted on the Xilinx App Store. Your use of the Xilinx App Store is conditioned on the following:
2.1 Your compliance with this Agreement, as may be updated by Xilinx from time to time.
2.2 Notwithstanding any provisions to the contrary in such agreements, you acknowledge and agree that Xilinx is hereby deemed a third-party beneficiary to all agreements between you and Accelize related to the Xilinx App Store, including but not limited to the Marketplace Seller Agreement. You acknowledge and agree that Xilinx is entitled to the rights and benefits of such agreements and may enforce the provisions thereof as if it were a party thereto. Where applicable, references to the “Accelize Marketplace” in such agreements shall mean the Xilinx App Store.
2.3 You may only promote, license, grant access to, or sell Content on the Xilinx App Store that is designed exclusively for use on a Xilinx device. Notwithstanding the foregoing, Xilinx reserves the rights to remove any of your Content at any time for any reason.
2.4 You agree Accelize may disclose user information, content information, pricing information, transaction information, entitlement information, usage information, and business intelligence data to Xilinx and Xilinx may use such data to operate, provide, improve, understand, support, and market the Xilinx App Store.
2.5 Unless agreed to in writing by Xilinx, you may not promote, license, grant access to, or sell any content designed for use on a Xilinx device on any other platform or service provided by Accelize.
2.6 You agree and acknowledge that Xilinx does not perform any scan of your Content or verification your Content meets any specifications. You shall be solely responsible for any security vulnerabilities present in the Content you promote, license, grant access to, or sell on the Xilinx App Store.
3.1 General Indemnification. You will defend, indemnify, and hold harmless Xilinx and its employees, officers, directors, and representatives, Xilinx's affiliates and licensors and each of their respective employees, officers, directors, and representatives, from and against any Losses arising out of or relating to any third party claim concerning: (a) Your or any of your Subscribers' use of the Services, including any activities under your Xilinx App Store account and use by your employees and personnel; (b) breach of this Agreement, breach of the Marketplace Seller Agreement, or violation of Applicable Law by you, your Subscribers, or your Content; (c) a dispute between you and any of your Subscribers; (d) alleged infringement, misappropriation, or violation of any third party rights by your Content (Reseller Content, in the case of Authorized Resellers), or by the copying, use, distribution, sale, development, design, production, advertising, or marketing of your Content (Reseller Content, in the case of Authorized Resellers); (e) a dispute between you and any IPV, Reseller, or Subscriber to your Content; (f) any royalties or payments due by you to any third parties as a result of this Agreement or the Marketplace Seller Agreement; (g) any security vulnerabilities contained within your Content; (h) any actual or alleged violation of law, negligence, willful misconduct, or fraud by you in connection with your Content; (i) any actual or alleged breach of your representations, warranties, or covenants set forth in the Marketplace Seller Agreement, including but not limited to Section 11.3 therein ("Representations and Warranties"); and (j) any claim or demand for payment of any Taxes imposed in connection with any Transaction, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit, or report any Taxes in connection with any Transaction. You will reimburse Xilinx for reasonable attorneys' fees, as well as Xilinx's employees' and contractors' time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (j) above at Xilinx's then-current hourly rates.
3.2 Process. Xilinx will promptly notify you of any claim subject to Section 3.1 ("General Indemnification"), but Xilinx's failure to promptly notify you will only affect your obligations to the extent that Xilinx's failure prejudices your ability to defend the claim. The parties must reasonably cooperate with the other in the defense and settlement of the claim. You may (a) use counsel of your own choosing (subject to Xilinx's written consent) to defend against any claim, and (b) settle the claim as you deem appropriate as long as you obtain Xilinx's prior written consent before entering into any settlement. Xilinx may also assume control of the defense and settlement of the claim at any time. In no event will a party agree to any settlement of any claim that involves any commitment without the written consent of the other party.
XILINX, XILINX'S AFFILIATES, AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER XILINX NOR ANY OF XILINX'S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) XILINX OR ACCELIZE'S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
IN NO EVENT WILL XILINX'S AND XILINX'S AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY TO YOU FOR ALL MATTERS ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THE XILINX APP STORE OR THIS AGREEMENT EXCEED FIFTY DOLLARS ($50). YOU AGREE THAT THIS SECTION 4 REPRESENTS AN ALLOCATION OF RISK WHICH THE PARTIES CONSIDER REASONABLE. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 4 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.1 Export Compliance. You shall adhere to all applicable import and export laws and regulations of your country and of the United States, without limitation. This Agreement may involve items and information that are subject to the U.S. government’s International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR). The importer/exporter of record shall not export, reexport, resell, transfer, or disclose, directly or indirectly, any products or technical data, to any proscribed person, entity, or country, or foreign persons thereof, unless properly authorized by the U.S. government and/or any other applicable or relevant government or regulatory body.
5.2 Governing Law. This Agreement and its performance shall be interpreted by, construed according to, and governed by, the laws of the State of California excluding conflict of laws rules and principles and the competent courts located in Santa Clara County, California shall have jurisdiction.
5.3 Assignment. You shall not assign this Agreement or transfer any of the rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Xilinx. Any merger, acquisition, reorganization, change of control, or the like, involving you shall be deemed an assignment in violation of the foregoing. Subject to the foregoing, this Agreement will be for the benefit of Xilinx and its successors and assigns, and will be binding on your permitted assignees.
5.4 No Waivers. The failure by Xilinx to enforce any provision of this Agreement will not constitute a present or future waiver of such provision, nor limit Xilinx's right to enforce such provision at a later time. All waivers by Xilinx must be in writing to be effective.
5.5 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
5.6 Notices. Any notices required or permitted by this Agreement shall be in writing and delivered to the address provided by each party to the other in connection with this Agreement, or to such other address as either party may specify in writing. Notices to Xilinx shall be addressed to the attention of: Xilinx, Inc., Attn: General Counsel, Legal Department, 2100 Logic Drive, San Jose, CA 95124.
5.7 Entire Agreement. Subject to and without limiting Section 2.2, this Agreement represents and constitutes the entire agreement between the parties with respect to the Xilinx App Store, and supersedes all prior or contemporaneous discussions, representations, arrangements, understandings or agreements, written or oral, regarding the subject matter hereof. No additional terms or modifications proposed by you shall be binding on Xilinx unless expressly agreed to in writing and signed by Xilinx.