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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. |