1 PLEASE READ THIS LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. THIS AGREEMENT IS
2 A BINDING LEGAL AGREEMENT ENTERED INTO BY AND BETWEEN YOU (OR IF YOU ARE
3 ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN THE ENTITY THAT YOU
4 REPRESENT) AND QUALCOMM TECHNOLOGIES, INC. ("QTI" "WE" "OUR" OR "US"). THIS IS
5 THE AGREEMENT THAT APPLIES TO YOUR USE OF THE DESIGNATED AND/OR LINKED
6 APPLICATIONS, THE ENCLOSED QUALCOMM TECHNOLOGIES' MATERIALS, INCLUDING RELATED
7 DOCUMENTATION AND ANY UPDATES OR IMPROVEMENTS THEREOF
8 (COLLECTIVELY, "MATERIALS"). BY USING OR COMPLETING THE INSTALLATION OF THE
9 MATERIALS, YOU ARE ACCEPTING THIS AGREEMENT AND YOU AGREE TO BE BOUND BY ITS
10 TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, QTI IS UNWILLING TO
11 AND DOES NOT LICENSE THE MATERIALS TO YOU. IF YOU DO NOT AGREE TO THESE TERMS
12 YOU MUST DISCONTINUE THE INSTALLATION PROCESS AND YOU MAY NOT USE THE MATERIALS
13 OR RETAIN ANY COPIES OF THE MATERIALS. ANY USE OR POSSESSION OF THE MATERIALS
14 BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
15
16 1. RIGHT TO USE DELIVERABLES; RESTRICTIONS.
17
18 1.1 License. Subject to the terms and conditions of this Agreement,
19 including, without limitation, the restrictions, conditions, limitations and
20 exclusions set forth in this Agreement, QTI hereby grants to you a
21 nonexclusive, limited license under QTI's copyrights to: (i) install and use
22 the Materials; and (ii) to reproduce and redistribute the binary code portions
23 of the Materials (the "Redistributable Binary Code"). You may make and use a
24 reasonable number of copies of any documentation.
25
26 1.2 Redistribution Restrictions. Distribution of the Redistributable Binary
27 Code is subject to the following restrictions: (i) Redistributable Binary Code
28 may only be distributed in binary format and may not be distributed in source
29 code format:; (ii) the Redistributable Binary Code may only operate in
30 conjunction with platforms incorporating Qualcomm Technologies, Inc. chipsets;
31 (iii) redistribution of the Redistributable Binary Code must include the .txt
32 file setting forth the terms and condition of this Agreement; (iv) you may not
33 use Qualcomm Technologies' or its affiliates or subsidiaries name, logo or
34 trademarks; and (v) copyright, trademark, patent and any other notices that
35 appear on the Materials may not be removed or obscured.
36
37 1.3 Additional Restrictions. Except as expressly permitted by this Agreement,
38 you shall have no right to sublicense, transfer or otherwise disclose the
39 Materials to any third party. You shall not reverse engineer, reverse
40 assemble, reverse translate, decompile or reduce to source code form any
41 portion of the Materials provided in object code form or executable form.
42 Except for the purposes expressly permitted in this Agreement, You shall not
43 use the Materials for any other purpose. QTI (or its licensors) shall retain
44 title and all ownership rights in and to the Materials and any alterations,
45 modifications (including all derivative works), translations or adaptations
46 made of the Materials, and all copies thereof, and nothing herein shall be
47 deemed to grant any right to You under any of QTI's or its affiliates'
48 patents. You shall not subject the Materials to any third party license
49 terms (e.g., open source license terms). You shall not use the Materials for
50 the purpose of identifying or providing evidence to support any potential
51 patent infringement claim against QTI, its affiliates, or any of QTI's or
52 QTI's affiliates' suppliers and/or direct or indirect customers. QTI hereby
53 reserves all rights not expressly granted herein.
54
55 1.4 Third Party Software and Materials. The Software may contain or link to
56 certain software and/or materials that are written or owned by third parties.
57 Such third party code and materials may be licensed under separate or
58 different terms and conditions and are not licensed to you under the terms of
59 this Agreement. You agree to comply with all terms and conditions imposed on
60 you in the applicable third party licenses. Such terms and conditions may
61 impose certain obligations on you as a condition to the permitted use of such
62 third party code and materials. QTI does not represent or warrant that such
63 third party licensors have or will continue to license or make available their
64 code and materials to you.
65
66 1.5 Feedback. QTI may from time to time receive suggestions, feedback or
67 other information from You regarding the Materials. Any suggestions, feedback
68 or other disclosures received from You are and shall be entirely voluntary on
69 the part of You. Notwithstanding any other term in this Agreement, QTI shall
70 be free to use suggestions, feedback or other information received from You,
71 without obligation of any kind to You. The Parties agree that all inventions,
72 product improvements, and modifications conceived of or made by QTI that are
73 based, either in whole or in part, on ideas, feedback, suggestions, or
74 recommended improvements received from You are the exclusive property of QTI,
75 and all right, title and interest in and to any such inventions, product
76 improvements, and modifications will vest solely in QTI.
77
78 1.6 No Technical Support. QTI is under no obligation to provide any form of
79 technical support for the Materials, and if QTI, in its sole discretion,
80 chooses to provide any form of support or information relating to the
81 Materials, such support and information shall be deemed confidential and
82 proprietary to QTI.
83
84 2. WARRANTY DISCLAIMER. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF
85 THE MATERIALS IS AT YOUR SOLE RISK. THE MATERIALS AND TECHNICAL SUPPORT, IF
86 ANY, ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR
87 IMPLIED. QTI ITS LICENSORS AND AFFILIATES MAKE NO WARRANTIES, EXPRESS OR
88 IMPLIED, WITH RESPECT TO THE MATERIALS OR ANY OTHER INFORMATION OR DOCUMENTATION
89 PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
90 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR
91 ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF
92 DEALING OR COURSE OF PERFORMANCE. NOTHING CONTAINED IN THIS AGREEMENT SHALL BE
93 CONSTRUED AS (I) A WARRANTY OR REPRESENTATION BY QTI, ITS LICENSORS OR
94 AFFILIATES AS TO THE VALIDITY OR SCOPE OF ANY PATENT, COPYRIGHT OR OTHER
95 INTELLECTUAL PROPERTY RIGHT OR (II) A WARRANTY OR REPRESENTATION BY QTI THAT ANY
96 MANUFACTURE OR USE WILL BE FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHTS OR
97 OTHER INTELLECTUAL PROPERTY RIGHTS OF OTHERS, AND IT SHALL BE THE SOLE
98 RESPONSIBILITY OF YOU TO MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO
99 THE ACQUISITION OF LICENSES UNDER PATENTS AND OTHER INTELLECTUAL PROPERTY OF
100 THIRD PARTIES.
101
102 3. NO OTHER LICENSES OR INTELLECTUAL PROPERTY RIGHTS. Neither this Agreement,
103 nor any act by QTI or any of its affiliates pursuant to this Agreement or
104 relating to the Materials (including, without limitation, the provision by QTI
105 or its affiliates of the Materials), shall provide to You any license or any
106 other rights whatsoever under any patents, trademarks, trade secrets, copyrights
107 or any other intellectual property of QTI or any of its affiliates, except for
108 the copyright rights expressly licensed under this Agreement. You understand and
109 agree that:
110
111 (i) Neither this Agreement, nor delivery of the Materials, grants any right to
112 practice, or any other right at all with respect to, any patent of QTI or any
113 of its affiliates; and
114
115 (ii) A separate license agreement from QUALCOMM Incorporated is needed to use
116 or practice any patent of QUALCOMM Incorporated. You agree not to contend in
117 any context that, as a result of the provision or use of the Materials, either
118 QTI or any of its affiliates has any obligation to extend, or You or any other
119 party has obtained any right to, any license, whether express or implied, with
120 respect to any patent of QTI or any of its affiliates for any purpose.
121
122 4. TERMINATION. This Agreement shall be effective upon acceptance, or access or
123 use of the Materials (whichever occurs first) by You and shall continue until
124 terminated. You may terminate the Agreement at any time by deleting and
125 destroying all copies of the Materials and all related information in Your
126 possession or control. This Agreement terminates immediately and automatically,
127 with or without notice, if You fail to comply with any provision hereof.
128 Additionally, QTI may at any time terminate this Agreement, without cause, upon
129 notice to You. Upon termination You must, to the extent possible, delete or
130 destroy all copies of the Materials in Your possession and the license granted
131 to You in this Agreement shall terminate. Sections 1.2 through 10 shall survive
132 the termination of this Agreement. In the event that any restrictions,
133 conditions, limitations are found to be either invalid or unenforceable, the
134 rights granted to You in Section 1 (License) shall be null, void and ineffective
135 from the Effective Date, and QTI shall also have the right to terminate this
136 Agreement immediately, and with retroactive effect to the effective date.
137
138 5. LIMITATION OF LIABILITY. IN NO EVENT SHALL QTI, QTI's AFFILIATES OR ITS
139 LICENSORS BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES,
140 INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL
141 DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE
142 TO DELIVER, ANY OF THE DELIVERABLES, OR ANY BREACH OF ANY OBLIGATION UNDER THIS
143 AGREEMENT, EVEN IF QTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
144 THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT
145 REGARDLESS OF WHETHER YOUR REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF
146 THEIR ESSENTIAL PURPOSE. THE ENTIRE LIABILITY OF QTI, QTI's AFFILIATES AND ITS
147 LICENSORS, AND THE SOLE AND EXCLUSIVE REMEDY OF YOU, FOR ANY CLAIM OR CAUSE OF
148 ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT
149 EXCEED US$50.
150
151 6. INDEMNIFICATION. You agree to indemnify and hold harmless QTI and its
152 officers, directors, employees and successors and assigns against any and all
153 third party claims, demands, causes of action, losses, liabilities, damages,
154 costs and expenses, incurred by QTI (including but not limited to costs of
155 defense, investigation and reasonable attorney's fees) arising out of, resulting
156 from or related to: (i) any breach of this Agreement by You; and (ii) your acts,
157 omissions, products and services. If requested by QTI, You agree to defend QTI
158 in connection with any third party claims, demands, or causes of action
159 resulting from, arising out of or in connection with any of the foregoing.
160
161 7. ASSIGNMENT. You shall not assign this Agreement or any right or interest
162 under this Agreement, nor delegate any obligation to be performed under this
163 Agreement, without QTI's prior written consent. For purposes of this Section 7,
164 an "assignment" by You under this Section shall be deemed to include, without
165 limitation, any merger, consolidation, sale of all or substantially all of its
166 assets, or any substantial change in the management or control of You.
167 Any attempted assignment in contravention of this Section 9 shall be void.
168 QTI may freely assign this Agreement or delegate any or all of its rights and
169 obligations hereunder to any third party.
170
171 8. COMPLIANCE WITH LAWS; APPLICABLE LAW. You agree to comply with all
172 applicable local, international and national laws and regulations and with U.S.
173 Export Administration Regulations, as they apply to the subject matter of this
174 Agreement. This Agreement is governed by the laws of the State of California,
175 excluding California's choice of law rules.
176
177 9. CONTRACTING PARTIES. If the Materials are downloaded on any computer owned
178 by a corporation or other legal entity, then this Agreement is formed by and
179 between QTI and such entity. The individual accepting the terms of this
180 Agreement represents and warrants to QTI that they have the authority to bind
181 such entity to the terms and conditions of this Agreement.
182
183 10. MISCELLANEOUS PROVISIONS. This Agreement, together with all exhibits
184 attached hereto, which are incorporated herein by this reference, constitutes
185 the entire agreement between QTI and You and supersedes all prior negotiations,
186 representations and agreements between the parties with respect to the subject
187 matter hereof. No addition or modification of this Agreement shall be effective
188 unless made in writing and signed by the respective representatives of QTI and
189 You. The restrictions, limitations, exclusions and conditions set forth in this
190 Agreement shall apply even if QTI or any of its affiliates becomes aware of or
191 fails to act in a manner to address any violation or failure to comply
192 therewith. You hereby acknowledge and agree that the restrictions, limitations,
193 conditions and exclusions imposed in this Agreement on the rights granted in
194 this Agreement are not a derogation of the benefits of such rights. You further
195 acknowledges that, in the absence of such restrictions, limitations, conditions
196 and exclusions, QTI would not have entered into this Agreement with You. Each
197 party shall be responsible for and shall bear its own expenses in connection
198 with this Agreement. If any of the provisions of this Agreement are determined
199 to be invalid, illegal, or otherwise unenforceable, the remaining provisions
200 shall remain in full force and effect. This Agreement is entered into solely
201 in the English language, and if for any reason any other language version is
202 prepared by any party, it shall be solely for convenience and the English
203 version shall govern and control all aspects. If You are located in the
204 province of Quebec, Canada, the following applies: The Parties hereby confirm
205 they have requested this Agreement and all related documents be prepared
206 in English.
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