| LICENSE AGREEMENT |
| |
| PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. THIS AGREEMENT IS A |
| BINDING LEGAL AGREEMENT ENTERED INTO BY AND BETWEEN YOU (OR IF YOU ARE ENTERING |
| INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN THE ENTITY THAT YOU REPRESENT) |
| AND QUALCOMM TECHNOLOGIES, INC. ("QTI" "WE" "OUR" OR "US"). THIS IS THE |
| AGREEMENT THAT APPLIES TO YOUR USE OF THE DESIGNATED AND/OR LINKED APPLICATIONS, |
| THE ENCLOSED QUALCOMM TECHNOLOGIES’ MATERIALS, INCLUDING RELATED DOCUMENTATION |
| AND ANY UPDATES OR IMPROVEMENTS THEREOF (COLLECTIVELY, "MATERIALS"). BY USING |
| OR COMPLETING THE INSTALLATION OF THE MATERIALS, YOU ARE ACCEPTING THIS |
| AGREEMENT AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT |
| AGREE TO THESE TERMS, QTI IS UNWILLING TO AND DOES NOT LICENSE THE MATERIALS TO |
| YOU. IF YOU DO NOT AGREE TO THESE TERMS YOU MUST DISCONTINUE THE INSTALLATION |
| PROCESS AND YOU MAY NOT USE THE MATERIALS OR RETAIN ANY COPIES OF THE |
| MATERIALS. ANY USE OR POSSESSION OF THE MATERIALS BY YOU IS SUBJECT TO THE TERMS |
| AND CONDITIONS SET FORTH IN THIS AGREEMENT. |
| |
| 1. RIGHT TO USE DELIVERABLES; RESTRICTIONS. |
| |
| 1.1 License. |
| |
| Subject to the terms and conditions of this Agreement, including, without |
| limitation, the restrictions, conditions, limitations and exclusions set forth |
| in this Agreement, QTI hereby grants to you a nonexclusive, limited license |
| under QTI’s copyrights to: (i) install and use the Materials; and (ii) to |
| reproduce and redistribute the binary code portions of the Materials (the |
| "Redistributable Binary Code"). You may make and use a reasonable number of |
| copies of any documentation. |
| |
| 1.2 Redistribution Restrictions. |
| |
| Distribution of the Redistributable Binary Code is subject to the following |
| restrictions: (i) Redistributable Binary Code may only be distributed in binary |
| format and may not be distributed in source code format: (ii) Redistributable |
| Binary Code may not be distributed on a stand alone basis but may be |
| redistributed in conjunction with and as a part of a software application |
| created by you; (iii) the Redistributable Binary Code may only operate in |
| conjunction with platforms incorporating Qualcomm Technologies, Inc. chipsets; |
| (iv) redistribution of the Redistributable Binary Code must include the .txt |
| file setting forth the terms and condition of this Agreement; (v) you may not |
| use Qualcomm Technologies' or its affiliates or subsidiaries name, logo or |
| trademarks; and (vi) copyright, trademark, patent and any other notices that |
| appear on the Materials may not be removed or obscured. |
| |
| 1.3 Additional Restrictions. |
| |
| Except as expressly permitted by this Agreement, you shall have no right to |
| sublicense, transfer or otherwise disclose the Materials to any third party. |
| You shall not reverse engineer, reverse assemble, reverse translate, decompile |
| or reduce to source code form any portion of the Materials provided in object |
| code form or executable form. Except for the purposes expressly permitted in |
| this Agreement, You shall not use the Materials for any other purpose. QTI (or |
| its licensors) shall retain title and all ownership rights in and to the |
| Materials and any alterations, modifications (including all derivative works), |
| translations or adaptations made of the Materials, and all copies thereof, and |
| nothing herein shall be deemed to grant any right to You under any of QTI's or |
| its affiliates' patents. You shall not subject the Materials to any third party |
| license terms (e.g., open source license terms). You shall not use the |
| Materials for the purpose of identifying or providing evidence to support any |
| potential patent infringement claim against QTI, its affiliates, or any of QTI's |
| or QTI's affiliates' suppliers and/or direct or indirect customers. QTI hereby |
| reserves all rights not expressly granted herein. |
| |
| 1.4 Third Party Software and Materials. |
| |
| The Software may contain or link to certain software and/or materials that are |
| written or owned by third parties. Such third party code and materials may be |
| licensed under separate or different terms and conditions and are not licensed |
| to you under the terms of this Agreement. You agree to comply with all terms |
| and conditions imposed on you in the applicable third party licenses. Such |
| terms and conditions may impose certain obligations on you as a condition to the |
| permitted use of such third party code and materials. QTI does not represent or |
| warrant that such third party licensors have or will continue to license or make |
| available their code and materials to you. |
| |
| 1.5 Feedback. |
| |
| QTI may from time to time receive suggestions, feedback or other information |
| from You regarding the Materials. Any suggestions, feedback or other |
| disclosures received from You are and shall be entirely voluntary on the part of |
| You. Notwithstanding any other term in this Agreement, QTI shall be free to use |
| suggestions, feedback or other information received from You, without obligation |
| of any kind to You. The Parties agree that all inventions, product |
| improvements, and modifications conceived of or made by QTI that are based, |
| either in whole or in part, on ideas, feedback, suggestions, or recommended |
| improvements received from You are the exclusive property of QTI, and all right, |
| title and interest in and to any such inventions, product improvements, and |
| modifications will vest solely in QTI. |
| |
| 1.6 No Technical Support. |
| |
| QTI is under no obligation to provide any form of technical support for the |
| Materials, and if QTI, in its sole discretion, chooses to provide any form of |
| support or information relating to the Materials, such support and information |
| shall be deemed confidential and proprietary to QTI. |
| |
| 2. WARRANTY DISCLAIMER. |
| |
| YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE MATERIALS IS AT YOUR |
| SOLE RISK. THE MATERIALS AND TECHNICAL SUPPORT, IF ANY, ARE PROVIDED "AS IS" |
| AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. QTI ITS LICENSORS |
| AND AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE |
| MATERIALS OR ANY OTHER INFORMATION OR DOCUMENTATION PROVIDED UNDER THIS |
| AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR |
| FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR |
| IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR |
| COURSE OF PERFORMANCE. NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED |
| AS (I) A WARRANTY OR REPRESENTATION BY QTI, ITS LICENSORS OR AFFILIATES AS TO |
| THE VALIDITY OR SCOPE OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY |
| RIGHT OR (II) A WARRANTY OR REPRESENTATION BY QTI THAT ANY MANUFACTURE OR USE |
| WILL BE FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHTS OR OTHER INTELLECTUAL |
| PROPERTY RIGHTS OF OTHERS, AND IT SHALL BE THE SOLE RESPONSIBILITY OF YOU TO |
| MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF |
| LICENSES UNDER PATENTS AND OTHER INTELLECTUAL PROPERTY OF THIRD PARTIES. |
| |
| 3. NO OTHER LICENSES OR INTELLECTUAL PROPERTY RIGHTS. |
| |
| Neither this Agreement, nor any act by QTI or any of its affiliates pursuant to |
| this Agreement or relating to the Materials (including, without limitation, the |
| provision by QTI or its affiliates of the Materials), shall provide to You any |
| license or any other rights whatsoever under any patents, trademarks, trade |
| secrets, copyrights or any other intellectual property of QTI or any of its |
| affiliates, except for the copyright rights expressly licensed under this |
| Agreement. You understand and agree that: (i) Neither this Agreement, nor |
| delivery of the Materials, grants any right to practice, or any other right at |
| all with respect to, any patent of QTI or any of its affiliates; and (ii) A |
| separate license agreement from QUALCOMM Incorporated is needed to use or |
| practice any patent of QUALCOMM Incorporated. You agree not to contend in any |
| context that, as a result of the provision or use of the Materials, either QTI |
| or any of its affiliates has any obligation to extend, or You or any other party |
| has obtained any right to, any license, whether express or implied, with respect |
| to any patent of QTI or any of its affiliates for any purpose. |
| |
| 4. TERMINATION. |
| |
| This Agreement shall be effective upon acceptance, or access or use of the |
| Materials (whichever occurs first) by You and shall continue until |
| terminated. You may terminate the Agreement at any time by deleting and |
| destroying all copies of the Materials and all related information in Your |
| possession or control. This Agreement terminates immediately and automatically, |
| with or without notice, if You fail to comply with any provision |
| hereof. Additionally, QTI may at any time terminate this Agreement, without |
| cause, upon notice to You. Upon termination You must, to the extent possible, |
| delete or destroy all copies of the Materials in Your possession and the license |
| granted to You in this Agreement shall terminate. Sections 1.2 through 10 shall |
| survive the termination of this Agreement. In the event that any restrictions, |
| conditions, limitations are found to be either invalid or unenforceable, the |
| rights granted to You in Section 1 (License) shall be null, void and ineffective |
| from the Effective Date, and QTI shall also have the right to terminate this |
| Agreement immediately, and with retroactive effect to the effective date. |
| |
| 5. LIMITATION OF LIABILITY. |
| |
| IN NO EVENT SHALL QTI, QTI's AFFILIATES OR ITS LICENSORS BE LIABLE TO YOU FOR |
| ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO |
| ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL DAMAGES, ARISING OUT OF THE |
| USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE TO DELIVER, ANY OF THE |
| DELIVERABLES, or any breach of any obligation under this agreement, EVEN IF QTI |
| HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION |
| OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER YOUR |
| REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. |
| THE ENTIRE LIABILITY OF QTI, QTI's AFFILIATES AND ITS LICENSORS, AND THE SOLE |
| AND EXCLUSIVE REMEDY OF YOU, FOR ANY CLAIM OR CAUSE OF ACTION ARISING HEREUNDER |
| (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED US$500. |
| |
| 6. INDEMNIFICATION. |
| |
| You agree to indemnify and hold harmless QTI and its officers, directors, |
| employees and successors and assigns against any and all third party claims, |
| demands, causes of action, losses, liabilities, damages, costs and expenses, |
| incurred by QTI (including but not limited to costs of defense, investigation |
| and reasonable attorney's fees) arising out of, resulting from or related to: |
| (i) any breach of this Agreement by You; and (ii) your acts, omissions, products |
| and services. If requested by QTI, You agree to defend QTI in connection with |
| any third party claims, demands, or causes of action resulting from, arising out |
| of or in connection with any of the foregoing. |
| |
| 7. ASSIGNMENT. |
| |
| You shall not assign this Agreement or any right or interest under this |
| Agreement, nor delegate any obligation to be performed under this Agreement, |
| without QTI's prior written consent. For purposes of this Section 7, an |
| "assignment" by You under this Section shall be deemed to include, without |
| limitation, any merger, consolidation, sale of all or substantially all of its |
| assets, or any substantial change in the management or control of You. Any |
| attempted assignment in contravention of this Section 9 shall be void. QTI may |
| freely assign this Agreement or delegate any or all of its rights and |
| obligations hereunder to any third party. |
| |
| 8. COMPLIANCE WITH LAWS; APPLICABLE LAW. |
| |
| You agree to comply with all applicable local, international and national laws |
| and regulations and with U.S. Export Administration Regulations, as they apply |
| to the subject matter of this Agreement. This Agreement is governed by the laws |
| of the State of California, excluding California's choice of law rules. |
| |
| 9. CONTRACTING PARTIES. |
| |
| If the Materials are downloaded on any computer owned by a corporation or other |
| legal entity, then this Agreement is formed by and between QTI and such entity. |
| The individual accepting the terms of this Agreement represents and warrants to |
| QTI that they have the authority to bind such entity to the terms and conditions |
| of this Agreement. |
| |
| 10. MISCELLANEOUS PROVISIONS. |
| |
| This Agreement, together with all exhibits attached hereto, which are |
| incorporated herein by this reference, constitutes the entire agreement between |
| QTI and You and supersedes all prior negotiations, representations and |
| agreements between the parties with respect to the subject matter hereof. No |
| addition or modification of this Agreement shall be effective unless made in |
| writing and signed by the respective representatives of QTI and You. The |
| restrictions, limitations, exclusions and conditions set forth in this Agreement |
| shall apply even if QTI or any of its affiliates becomes aware of or fails to |
| act in a manner to address any violation or failure to comply therewith. You |
| hereby acknowledge and agree that the restrictions, limitations, conditions and |
| exclusions imposed in this Agreement on the rights granted in this Agreement are |
| not a derogation of the benefits of such rights. You further acknowledges that, |
| in the absence of such restrictions, limitations, conditions and exclusions, QTI |
| would not have entered into this Agreement with You. Each party shall be |
| responsible for and shall bear its own expenses in connection with this |
| Agreement. If any of the provisions of this Agreement are determined to be |
| invalid, illegal, or otherwise unenforceable, the remaining provisions shall |
| remain in full force and effect. This Agreement is entered into solely in the |
| English language, and if for any reason any other language version is prepared |
| by any party, it shall be solely for convenience and the English version shall |
| govern and control all aspects. If You are located in the province of Quebec, |
| Canada, the following applies: The Parties hereby confirm they have requested |
| this Agreement and all related documents be prepared in English. |