EVGA PRECISION XOC LICENSE AGREEMENT

© 2016 EVGA Corporation. All Rights Reserved.

This License Agreement is for Customer’s use of EVGA Precision XOC Software (the “Software”) and for any associated printed materials (the "Documentation" and, collectively with the Software, the “Licensed Materials”). The Software is licensed to Customer under this License Agreement by EVGA Corporation (“EVGA”) solely for use with EVGA’s VGA cards 10 series or higher (the “Corresponding VGA Cards”). This License Agreement sets forth the terms and conditions of use of the Software only (and not of the Corresponding VGA Cards).

By clicking to accept or agree to this License Agreement when downloading or installing the Software, you agree to comply with and be bound by this License Agreement. If you do not agree to this License Agreement, you must not install or use the Licensed Materials. If the individual clicking to accept or agree to this License Agreement is doing so on behalf of a corporation or other entity who has purchased or obtained a Corresponding VGA Card, then you (the individual) represent and warrant that you have authority to bind such entity as the “Customer” hereunder and enter into this License Agreement on its behalf. If the individual clicking to accept or agree to this License Agreement is not doing so on behalf of such an entity, then “Customer” refers to you (the individual).

1. GRANT OF LICENSE

EVGA hereby grants Customer the non-exclusive, non-transferable, non-sublicensable right to (a) install the Software on one or more computers that incorporate one or more Corresponding VGA Cards, (b) use the Software solely with such Corresponding VGA Cards (and not with other graphics cards), and (c) make a reasonable number of back-up copies of such Software, subject to the below express restrictions and the other terms and conditions of this License Agreement. Customer may also use and make a reasonable number of copies of the Documentation solely for Customer’s personal or internal use as applicable.

2. RESTRICTION ON USE

Customer shall not:

(a) reverse engineer, decompile, or disassemble the Software; attempt in any other manner to obtain or derive the source code of, or any algorithms contained in, the Software; or attempt to disable any security devices or codes incorporated in the Software;

(b) modify, adapt or create derivative works of the Licensed Materials, or any portion therefore;

(c) reproduce or copy the Licensed Materials, except as expressly permitted in Section 1 above;

(d) distribute or transfer the Licensed Materials to any other person;

(e) use the Software for any commercial use, utilization and distribution, including but not limited to public demonstration or overclocking event, etc.; and

(f) separate any component part(s) of the Software for use on more than one computer, or otherwise used separately from the other parts.

3. INTELLECTUAL PROPERTY

Other than the express limited licenses granted hereunder, EVGA and its licensors retains all rights, title, and interest in the Licensed Materials, including in all rights in copyrights, patents, trademarks, trade secrets and other intellectual property rights underlying or covering the Licensed Materials. Customer shall not alter, remove, or obscure any printed or displayed legal notices contained on or in copies of the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.

4. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND EVGA AND ITS AFFILIATES DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO OR ARISING FROM THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Without limiting the foregoing, Customer acknowledges and agrees that Customer is solely responsible for (a) verifying that the Software is being used with a Corresponding VGA Card of the appropriate version and model number, on a compatible computer and operating system; and (b) ensuring that any configuration or setting changes Customer makes to the Corresponding VGA Cards, including GPU clock offsets, memory clock offsets, fan speed, and voltage, are within manufacturer’s recommended ranges and safety and tolerance specifications. EVGA shall have no obligation or liability for damage to the Corresponding VGA Cards, any other video cards, or any computer due to changes Customer elects to make with the Software to such hardware’s settings.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EVGA OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF EVGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. TERMINATION

Customer’s licenses and rights under this License Agreement shall terminate immediately upon Customer’s breach of any of the terms or conditions of this License Agreement. Upon any termination of this License Agreement or the licenses granted hereunder, Customer must destroy all copies of the Licensed Materials. Sections 2, 3, 4 and 6 shall survive any termination of this License Agreement or the licenses granted hereunder.

In addition, if Customer commences or participates in any legal proceeding against EVGA, then EVGA may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this License Agreement during the legal proceedings.

6. MISCELLANEOUS

If any provision of this License Agreement is inconsistent with, or cannot be fully enforced under, applicable law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This License Agreement is the final, complete and exclusive License Agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. This License Agreement may only be modified in writing. Customer agrees that it will not ship, transfer or export the Software into any country or to any individual prohibited by any applicable export laws, restrictions or regulations. This License Agreement shall be construed pursuant to and governed by the laws of the State of California, without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed