IMPORTANT - READ CAREFULLY BEFORE OPENING By opening this sealed envelope, you indicate your acceptance of the following NeoMagic Corporation Binary Software License Agreement NEOMAGIC CORPORATION BINARY SOFTWARE LICENSE AGREEMENT This is a legal agreement ("Agreement") between NeoMagic Corporation ("NeoMagic") and the user ("Licensee") of the enclosed software (the "Software") who is also a purchaser of NeoMagic chips ("NeoMagic Chips"). By opening this sealed envelope, Licensee agrees to be bound by the terms of this Agreement. To avoid being bound by the terms of this Agreement, Licensee must promptly return the unopened envelope and the accompanying items (including accompanying documentation and packaging) to NeoMagic. 1. Grant of License. NeoMagic hereby grants Licensee a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license (without right to sublicense) to: (i) incorporate the Software in object code format in Licensee's products incorporating the NeoMagic Chips; (ii) reproduce and have reproduced the Software in object code format and the associated documentation as reasonably needed for inactive backup or archival purposes; and (iii) reproduce, have reproduced, and distribute in object code format that number of copies of the Software and the associated documentation equal to the number of the NeoMagic Chips purchased by Licensee from NeoMagic. Distribution of the Software and the associated documentation is limited solely to customers of Licensee's products incorporating the NeoMagic Chips and solely for use in or with such products. Licensee shall bear all costs of its reproduction and distribution of the Software and the associated documentation. 2. Ownership. NeoMagic and/or its licensor(s) retain all right, title, and ownership of the Software and any derivative works based on the Software, and any associated source code, technical documentation and user documentation, including all copyrights, trade secret rights and other proprietary rights in all of the foregoing. Licensee may not copy the Software or associated documentation except as expressly provided in this Agreement and except for legitimate backup and archival purposes. 3. Confidentiality. Licensee acknowledges that the Software contains confidential information of NeoMagic and its licensor(s) ("Confidential Information"). Licensee agrees to use its best efforts not to release, disclose or otherwise permit access to the Confidential Information and not use it except as expressly authorized in this Agreement or as NeoMagic may otherwise permit in writing. Licensee agrees not to decompile or disassemble the Software. In the event of a breach or threatened breach of this Section 3, NeoMagic shall be entitled to seek injunctive relief. 4. Additional Obligations of Licensee. Licensee shall, at its expense, provide all support for the Software to its customers and NeoMagic shall have no responsibility for such support. Licensee agrees not to remove or destroy any proprietary, trademark or copyright markings or confidentiality legends placed upon or contained within the Software or any related materials. 5. Limited Warranty. NeoMagic warrants the media on which the Software is delivered to be free from defects in materials and workmanship at the time of delivery to Licensee. NeoMagic has made reasonable checks of the Software to confirm that it will perform in normal use on compatible equipment substantially as described in NeoMagic's documentation for the Software. However, due to the inherently complex nature of computer software, NeoMagic does not warrant that the Software is error-free, will operate without interruption, is compatible with all equipment and software configurations, or will otherwise meet Licensee's needs. NeoMagic's entire liability and Licensee's exclusive remedy under this warranty will be, at Neomagic's option, to attempt to correct or work around errors with that degree of effort which NeoMagic believes suitable to the problem or to replace the Software with functionally equivalent software. This limited warranty expires 90 days after delivery of the Software to Licensee. 6. DISCLAIMER OF OTHER WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 5, NEOMAGIC MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT OF THIRD PARTY RIGHTS ARE SPECIFICALLY DISCLAIMED BY NEOMAGIC. NEOMAGIC DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE WITH RESPECT TO THE SOFTWARE. LICENSEE SHALL NOT, AND SHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT ITS AGENTS AND EMPLOYEES DO NOT, MAKE OR PASS THROUGH ANY SUCH WARRANTY ON BEHALF OF NEOMAGIC TO ANY DISTRIBUTOR, CUSTOMER OR OTHER THIRD PARTY. 7. LIMITATION OF LIABILITY. IN NO EVENT SHALL NEOMAGIC BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY CLAIMING RIGHTS THROUGH LICENSEE FOR ANY LOST PROFITS, LOST OPPORTUNITIES, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF NEOMAGIC HAS BEEN ADVISED OR KNOWS OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL NEOMAGIC'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF $10,000, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. 8. Government Licensee. If Licensee is acquiring the Software on behalf of the United States Government, the following provisions apply: The Government acknowledges NeoMagic's representation that the Software and the accompanying documentation were developed at private expense and no part of them is in the public domain. The Government also acknowledges NeoMagic's representation that the Software is "Restricted Computer Software" as that term is defined in clause 52.227-19 of the Federal Acquisition Regulations ("FAR") and is "Commercial Computer Software" as that term is defined in subpart 227.401 of the Department of Defense Federal Acquisition Regulation Supplement ("DFARS"). The Government agrees that (i) if the Software is supplied to the Department of Defense ("DoD"), the Software is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the Software and the accompanying documentation as that term is defined in Clause 52.227-7013(c)(1) of the DFARS; and (ii) if the Software is supplied to any unit or agency of the United States Government other than DoD, the Government's rights in the Software and the accompanying documentation will be as defined in Clause 52.227-19(c)(2) of the FAR. 9. Termination. This Agreement will immediately and automatically terminate without notice if Licensee fails to comply with any term or condition of this Agreement or upon termination of Licensee's rights to purchase NeoMagic's Chips. Licensee agrees upon termination to promptly destroy all copies of the Software and associated documentation in Licensee's possession together with merged portions in any form. 10. Other Terms. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral and written representations and agreements of the parties relating thereto. This Agreement shall be governed by the laws of the State of California. If any provision of this Agreement is found void or unenforceable, it will not affect the validity of the balance of this Agreement. Distribution of the Software is subject to compliance with all laws, regulations, orders and other restrictions on export from the United States of America of the Software or any technical information about the Software which are imposed by the government of the United States of America. 11. Further Information. For further information about the Software, contact NeoMagic Corporation at 2710 Walsh Avenue, Santa Clara, California 95051.