PGI Beta Test License Agreement NOTICE: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE DOWNLOADING, COPYING OR USING THE LICENSED SOFTWARE. THIS BETA TEST LICENSE AGREEMENT ("BTLA") IS A LEGAL AGREEMENT BETWEEN YOU, THE LICENSEE (A SINGLE PERSON, INSTITUTION, OR LEGAL ENTITY) ("YOU"), AND STMICROELECTRONICS, N.V., A DUTCH CORPORATION, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT STRAWINSKYLAAN 1725, TOWER B 17TH FLOOR, 1077 XX AMSTERDAM, THE NETHERLANDS, ACTING FOR THE PURPOSE OF THIS BTLA THROUGH ITS SWISS BRANCH, 39, CHEMIN DU CHAMP DES FILLES, C. P. 21, CH 1228 PLAN-LES-OUATES, GENEVA, SWITZERLAND ("ST") FOR THE LICENSED SOFTWARE,ASSOCIATED MEDIA, PRINTED MATERIAL, ELECTRONIC DOCUMENTATION OR ANY PORTION THEREOF("SOFTWARE", AS FURTHER DEFINED BELOW). ST IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS BTLA. PLEASE READ THE BTLA CAREFULLY. BY DOWNLOADING OR INSTALLING THIS SOFTWARE, YOU ACCEPT ALL OF THE TERMS OF THE BTLA. PLEASE INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS BY SELECTING THE "ACCEPT" BUTTON AT THE BOTTOM OF THE BTLA. IF YOU ARE UNWILLING TO BE BOUND BY ALL OF THE TERMS, PLEASE SELECT THE "DECLINE" BUTTON AT THE BOTTOM OF THE BTLA AND THE DOWNLOAD OR INSTALL PROCESS WILL STOP. The "Software" is further defined as PGI 12.3 OpenACC Fortran/C compilers and tools for x86 technology processor-based systems running Linux operating systems and NVIDIA GPU accelerators. 1) Ownership The Software distributed and licensed to You hereunder is proprietary to ST or its licensors (ST and licensors hereafter referred to as "Licensor"). The Licensors retain title to and ownership of the Software, including the copy provided herein, and reserve all rights not expressly granted in this BTLA. 2) Granting of License Under the terms and conditions of this BTLA, You are hereby granted a limited, revocable, nontransferable, and nonexclusive license, without the right to sublicense or distribute, to use the Software subject to the restrictions and other terms within, only for Beta testing purposes as defined below. That use must also be (i) only by You, (ii) only on a computer system running a specific operating system on which the Software is designed to run and for which portions of the Software and subsequent components in the compilation process are intended to produce an executable image ("Target System") for which the corresponding license keys have been legally obtained, (iii) only on the network(s) and only by the number of users for which the corresponding license keys have been legally obtained, and (iv) only to target no more than the maximum number of CPUs, or the maximum number of processes, for which the corresponding license keys have been legally obtained. "Beta testing purposes" is defined to mean only use of the Software subject to the following conditions: (a) The Software will be used for the express and sole purpose of evaluation toward determination of suitability for purchase of an upcoming production release of the Software, (b) In the absence of explicit permission from STMicroelectronics, The Portland Group, performance results obtained using the Software will not be published or presented in a public forum. Any other use of the Software is strictly prohibited. 3) Reserved For Future Use 4) Feedback You shall provide feedback to ST concerning the functionality and performance of the Software from time to time as reasonably requested by ST, including without limitation identifying errors and potential improvements. Feedback and other information that is provided by You to ST in connection with the Software or this BTLA may be used by ST to improve or enhance its products. You hereby irrevocably assign to ST all right, title and interest in and to any and all technology, know-how and other information incorporated into the Software by ST alone or jointly with others in connection with the development of the Software or any modification of or improvement to the Software which You may propose and provide, including without limitation feedback provided under this BTLA (collectively, the "Software Technology"), and all copyrights, trade secrets, patent rights and other intellectual property rights relating to Software Technology. You agree to, and will cause your employees, agents and consultants to sign, execute and acknowledge documents and perform such acts as may be reasonably necessary to perfect the foregoing assignment and to obtain, enforce and defend intellectual property rights within the Software Technology. 5) Restrictions (A) You may make one (1) copy of the Software in machine-readable form, solely for archival or backup purposes, provided the copyright notice and other proprietary legends on the Software are included on any archival/backup copies made. You may not modify, adapt, translate, reverse engineer, de-compile, disassemble, or create derivative works in whole or in part based on the Software. You may not rent, lease, loan, or electronically transfer the Software to others. (B) The term "proprietary" as used in this BTLA or in the Software does not establish a confidential relationship between the Licensor and You and does not in itself provide You any rights to the Software. You acknowledge that the Licensors have valuable intellectual property rights in the Software and agree to respect and protect such intellectual property rights. No right, title, or interest in or to any trademark, service mark, logo or trade name of the Licensors is granted under this BTLA. (C) You acknowledge and agree that the Software is not designed or intended for use in nuclear activities or life support systems. The Licensors disclaim any express or implied warranty of fitness for such uses. (D) You will not modify or distribute any of the Software so that any part of it becomes subject to an Excluded License. As used in this BTLA, an "Excluded License" is one that requires, as a condition of use, modification, or distribution, that (i) the Software be disclosed or distributed in source code form; or (ii) others have a right to modify it, or (iii) the Software loses its proprietary nature. Therefore, without the prior written permission of the applicable Licensors, You may not modify the Software directly in any way. In particular, You may not introduce or commingle with the Software any source or object code that is governed by an open source or public license of any kind. IF YOU OTHERWISE TRANSFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED PORTION OF THE PROGRAM TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED. 6) Limited Warranty THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSORS FURTHER DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS BTLA OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT ST MAY BE HELD LEGALLY LIABLE TO YOU BY A COURT OF COMPETENT JURISDICTION UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, THE MAXIMUM LIABILITY OF THE LICENSORS SHALL NOT EXCEED THE APPLICABLE PURCHASE PRICE OF THE SOFTWARE OR ONE THOUSAND DOLLARS ($1,000), WHICHEVER IS GREATER. 7) Indemnity You agree to indemnify, defend, and hold the Licensors harmless from and against any and all claims, liabilities, damages, penalties, settlements, and costs and expenses (including, without limitation, reasonable attorneys' fees and court or arbitration costs), asserted by any and all third parties (collectively "Claims") against the Licensors, and their respective employees, directors, officers, and agents alleging or resulting from: (i) Your breach of any term or condition of this BTLA; (ii) alleged or actual infringement of the intellectual property or other proprietary rights of a third party by You or Your sublicensees; unauthorized alteration of the Software or derivative products by You or Your sublicensees; (iii) combination of the Software or derivative products with other software, products or materials not in accordance with the terms of this BTLA; or (iv) any acts or omissions by You, Your employees, directors, officers, and agents or sublicensees either under this BTLA or outside its scope, including personal injury, death, or property damage to anyone or anything. 8) Software Export All Software and technical data delivered under this BTLA are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that You have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to You. 9) Software Manuals All proprietary documentation provided with the Software is copyrighted and may not be copied, photographed, reproduced, translated or reduced to any electronic medium or machine-readable form in whole or in part without the express, written, prior approval of ST. 10) Government Use The Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government licensees and end users acquire the Software with only those rights set forth herein. 11) Termination The license granted to You in this BTLA is effective until terminated. The license may be terminated by ST at any time without prior notice. You may terminate the license at any time by returning and/or destroying the Software together with all copies. The license will also terminate immediately without notice from Licensor if You fail to comply with any provision of this BTLA. Upon termination of the license for any reason, you agree to destroy all copies of the Software. 12) Surviving Terms In the event this BTLA is terminated for any reason, the following provisions shall survive termination and shall remain in full force and effect: 1, 5, 6, 7, 8, 9, 10, 12, and 13. 13) Controlling Law and Complete Agreement This Agreement shall be construed and interpreted under the laws of the state of New York, not including its conflict of laws principles. If any provision of this BTLA, or portion thereof, is found to be unenforceable, that provision shall be enforced to the maximum extent possible and the remainder of this BTLA shall continue in full force and effect. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS BTLA AND AGREE TO BE BOUND BY ITS TERMS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN YOU AND ST AND THAT IT SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR WRITTEN, ANY PROPOSAL, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND ST RELATING TO THE SUBJECT MATTER OF THIS BTLA