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.
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.
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.
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.
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.
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.