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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. |
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