GOBI™ SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT THIS GOBI SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT (THE “Agreement”) IS A LEGALLY BINDING AGREEMENT BETWEEN QUALCOMM INCORPORATED ("Qualcomm") AND THE LEGAL ENTITY YOU REPRESENT (“YOU” OR “You”). QUALCOMM IS WILLING TO LICENSE THE GOBI SOFTWARE DEVELOPMENT KIT DESCRIBED IN THE LIST BELOW, INCLUDING RELATED DOCUMENTATION (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “Software”) TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. BY CHECKING THE BOX BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, QUALCOMM IS UNWILLING TO AND DOES NOT LICENSE THE SOFTWARE OR DOCUMENTATION TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, QUALCOMM IS UNWILLING TO AND DOES NOT LICENSE THE SOFTWARE OR DOCUMENTATION TO YOU, AND YOU MUST NOT CLICK ON THE "I AGREE" BUTTON BELOW AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS AND YOU SHALL NOT USE THE SOFTWARE OR RETAIN ANY COPIES OF THE SOFTWARE OR DOCUMENTATION.
1.1 License to Software. As more particularly described in the Qualcomm documentation provided with the Software (the “Documentation”), the Software is a development tool used to enable the development and testing of applications which are compatible with a Gobi Module. Subject to Your compliance with the terms and conditions of this Agreement, Qualcomm grants to You a non-exclusive, non-sublicensable, non-transferable, revocable, limited copyright right , during the term of this Agreement, to (a) download, install and use the Software in machine-readable (i.e. object code) form on an internal basis only, solely for development and testing of applications which are compatible with a Gobi Module and (b) distribute Qualcomm’s CM API libraries (or parts thereof) provided hereunder as embedded in Applications solely for use with products that incorporate a Gobi Module (the “Permitted Use”). For the avoidance of doubt, You may distribute Applications for use with products that do not incorporate a Gobi Module, so long as Qualcomm’s CM API libraries provided hereunder cannot be used, activated or otherwise accessed in any product that does not contain a Gobi Module. Except as expressly permitted above, You shall have no right under this Agreement to use the Software for any other purpose. The Software licensed hereunder may include, but is not limited to, the following: Gobi Software Development Kit (SDK) • Sample Applications (e.g., sample connection manager application for use in testing the SDK) • CM API Library Documentation for the Software • Gobi Software Development Kit Binaries (i.e., CM API Library) • Presentation: Gobi Connection Manager -- 80-VR668-1 B
1.2 Documentation. You may reproduce a reasonable number of copies of the Documentation, and use the Documentation as provided by Qualcomm on an internal basis only, and solely in support of Your Permitted Use of the Software. Distribution of the Documentation is prohibited without the express written permission of Qualcomm.
1.3 Third Party Licenses. Qualcomm reserves the right to include third party code and/or materials in the Software licensed under this Agreement. You agree to comply with all terms and conditions imposed on You in the applicable third party licenses including without limitation those provided to You in any product delivery. These licenses impose certain obligations on You. Qualcomm distributes the third party software to You, but does not represent or warrant that the third party licensors identified have or will continue to license their software to You, whether under these terms or other terms. A separate and independent license for use of any third party code may be required and You shall be solely responsible to verify whether such license is needed in conjunction with your use of such third party programs.
1.4 License to Source Code. Qualcomm may, in its sole discretion, provide in the Software certain sample applications in human readable (source code) form. If (and only if) Qualcomm provides portions of the Sample Applications in source code form to You then subject to the limitations set forth below Qualcomm hereby grants to You a personal, non-sublicensable, non-transferable, non-exclusive, revocable copyright license, during the term of this Agreement, to use, modify and compile into object code and reproduce in limited quantities such source code of the Sample Application, on an internal basis only, solely as described in the Documentation and solely for the Permitted Use. For any modifications that You make to the source code, if requested by Qualcomm You agree to provide a copy of such modifications to Qualcomm.
2.1 Retention of Rights. Other than with respect to certain third party software incorporated into the Software, as between You and Qualcomm, Qualcomm retains all right, title, and interest in and to the Software and any updates and improvements thereof, including without limitation all copyrights, patent rights and trademark rights and all other intellectual property rights therein. This Agreement does not convey to You any ownership interest in any of Qualcomm’s intellectual property rights including but not limited to those incorporated in (1) the Software or any component of the Software, or (2) any Gobi patents, patent applications, works of authorship, trade secrets, know-how, ideas, or any other subject matter protectable under intellectual property rights laws of any jurisdiction. As between You and Qualcomm, Qualcomm is the sole and exclusive owner of and retains all rights, title and interest in and to all Gobi software, including, without limitation, the items set forth in (1) and (2) above and all intellectual property rights in each of the foregoing. Neither the delivery of any Software nor any provision of this Agreement (including, without limitation, the rights and licenses granted by Qualcomm to You in Section 1 (License Grant)) shall be deemed or construed to grant to You either expressly, by implication, by way of estoppel, or otherwise any right, license, or authority to infringe or immunity from infringement liability under (i) any patents or intellectual property rights of Qualcomm or its affiliates, including, without limitation, any patents covering or relating to the Gobi software, any wireless telecommunications technology, such as CDMA, WCDMA, OFDMA, OFDM, etc. or any other broadcast technology such as MediaFlo, or (ii) any non-patent intellectual property rights of Qualcomm or its affiliates covering or relating to (a) any product or invention other than the Software or (b) any combination of any Gobi software with any other product or invention. Any rights not expressly granted to You herein are reserved by Qualcomm.
Qualcomm may from time to time receive suggestions, feedback or other information from You concerning the Software. Any suggestions, feedback or other disclosures made by You are and shall be entirely voluntary on Your part. Notwithstanding any other term in this Agreement, Qualcomm shall be free to use Your suggestions, feedback or other information in the further development of its Software, without obligation of any kind to You. The parties agree that all inventions, product improvements, and modifications to the Software conceived of or made by Qualcomm that are based, either in whole or in part, on Your ideas, feedback, suggestions, or recommended improvements are the exclusive property of Qualcomm, and all right, title and interest in and to any such inventions, product improvements, and modifications will vest solely in Qualcomm. Qualcomm reserves all rights not expressly granted herein.
2.2 Restricted Use. Except as expressly provided above, You may make a single copy the Software only for backup purposes, provided that You reproduce all copyright and other proprietary notices that are on the original copy of the Software. You shall not (i) alter, modify, translate, or adapt the Software or create any derivative works based thereon; (ii) disclose or otherwise transfer or allow access to the Software in whole or in part to any third party; (iii) allow such portions of the Applications which contain the Qualcomm CM API libraries (or parts thereof) to be used for any purpose other than with products that incorporate a Gobi Module and are supported by Qualcomm’s CM API libraries, and/or (iv) use the Software except as specifically contemplated in this Agreement. You represent and warrant to Qualcomm that the Applications will be distributed for use solely in accordance with this Agreement.
You shall not take or perform any actions in a manner that would require the Software or the Gobi Module to be licensed under Open License Terms (as defined below) including but not limited to: (a) combining the Software or any portions thereof with Open Source Software (as defined below), by means of incorporation or linking or otherwise; or (b) distributing the Software or any portion thereof with Open Source Software. Your rights under this Agreement are conditioned upon Your compliance with this Section 2.2. As used herein, the term “Open Source Software” means any software that is licensed under Open License Terms and the term “Open License Terms” means terms in any license for software which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed with such software (a “work”), any of the following: (a) the making available of source code, object code, or design information regarding the work; (b) the granting of permission for creating derivative works regarding the work; or (c) the granting of a royalty-free license to any party under intellectual property rights regarding the work. By means of example and without limitation, Open License Terms includes the following licenses or distribution models: the GNU General Public License (GPL), the GNU Lesser or Library GPL (LGPL), Mozilla Public License (MPL), or any similar open source, free software or community licenses. The rights granted by Qualcomm in Section 1 are expressly conditioned upon You, Your affiliates and each of Your respective subcontractors, sublicensees, distributors and customers not engaging in any act or failure to act, that enables, causes or facilitates any use or distribution of the Software (or any third-party software) in a manner that causes any patents owned or controlled by Qualcomm or any of its affiliates (or for which Qualcomm or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open License Terms. Additionally, no act by Qualcomm or any of its affiliates that is undertaken relating to the Software shall be later interpreted or otherwise construed as being inconsistent with the intent to not cause any patents owned or controlled by Qualcomm or any of its affiliates (or for which Qualcomm or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open License Terms.
2.3 Additional Restrictions. Excepting any portions of the Software provided to You in source code format, You will not (i) reverse engineer, disassemble, decompile, or translate the Software (or any portions thereof), or otherwise attempt to derive the source code version of any software provided as part of the Software, except if and only to the extent expressly permitted under applicable law (ii) make more copies of the Software than specified in this Agreement or allowed by applicable law, despite this limitation; (iii) transfer or assign this Agreement or any of the rights, duties or obligations hereunder; (iv) rent, lease, loan or otherwise in any manner provide or distribute the Software or any copy of the Software to a third party; or (v) reproduce (except as expressly permitted under Section 1 (License Grant), distribute, publicly perform, publicly display or create derivative works of or based on the Software, or disclose, provide or otherwise transfer, in any manner, to any third party the Software or any portion thereof. The license to the Software granted to You hereunder is solely for the Permitted Use set forth in Section 1 (License Grant) and the Software shall not be used for any other purpose.
3. CONFIDENTIALITY. The Software and all related information provided hereunder are confidential and proprietary to Qualcomm. Except as expressly permitted in this Agreement, You shall not to disclose or permit the disclosure of the Software in any form or any information relating to the Software (including without limitation the results of use or testing) to any third party without Qualcomm’s prior written permission. You agree that You will only use the Software and related information for the purposes contemplated under this Agreement. Unauthorized use or disclosure of the Software and/or such information would cause irreparable harm and significant injury to Qualcomm that would be difficult to ascertain or quantify; accordingly You agree that Qualcomm shall have the right to obtain injunctive or other equitable relief to enforce the terms of this Agreement without limiting any other rights or remedies. You acknowledge and agree that the Software is provided “AS IS” and that Qualcomm is under no obligation to provide any form of technical support for the Software. You further acknowledge and agree that if Qualcomm, in its sole discretion, chooses to provide any form of support or information relating to the Software, such support and information shall be deemed confidential and proprietary to Qualcomm and shall be protected in accordance with this Section 3.
4. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SOFTWARE AND DOCUMENTATION IS AT YOUR SOLE RISK. THE SOFTWARE, DOCUMENTATION AND TECHNICAL SUPPORT, IF ANY, ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, QUALCOMM AND ITS LICENSOR(S) (FOR THE PURPOSES OF SECTIONS 4, 5, AND 6, QUALCOMM AND ITS LICENSOR(S) SHALL BE COLLECTIVELY REFERRED TO AS QUALCOMM) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. QUALCOMM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, QUALCOMM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QUALCOMM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL QUALCOMM, ITS AFFILIATES OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOWNLOAD, INSTALLATION OR USE OF, OR INABILITY TO USE, THE SOFTWARE, EVEN IF QUALCOMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED. QUALCOMM HAS NO OBLIGATION TO DEFEND OR INDEMNIFY YOU UNDER THIS AGREEMENT. IN NO EVENT SHALL QUALCOMM’S TOTAL AGGREGATE LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNIFICATION, OR OTHERWISE) EXCEED ONE HUNDRED U.S. DOLLARS (US$100).
6. INDEMNITY. If an Application is written by You using any component of the Software and such Application is used, distributed, or otherwise deployed on a Gobi-enabled device, then You agree to indemnify and hold harmless Qualcomm and its officers, directors, employees and successors and assigns against any and all claims, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred by Qualcomm (including but not limited to costs of defense, investigation and reasonable attorney’s fees) arising out of, resulting from or related to (i) any use, reproduction or distribution of the Software by You, which causes an infringement of any patent, copyright, trademark, trade secret, or other property, publicity or privacy rights of any third parties arising in any jurisdiction anywhere in the world, except to the extent such infringement is caused by the unmodified Software, or portions thereof, as supplied to You by Qualcomm, (ii) the download, distribution, installation, storage, execution, use or transfer of such Software, products, documentation, content, materials or derivative works by any person or entity, except to the extent such infringement is caused by the unmodified Software, or portions thereof, as supplied to You by Qualcomm, and/or (iii) any breach of this Agreement by You. If requested by Qualcomm, You agree to defend Qualcomm 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. TERM AND TERMINATION. This Agreement shall be effective upon acceptance by You and shall continue until terminated. You may terminate the Agreement at any time by deleting and destroying all copies of the Software 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, Qualcomm may at any time terminate this Agreement, without cause, upon notice to You. Upon termination You must delete or destroy all copies of the Software and Documentation in Your possession and the license granted to You in this Agreement shall terminate. Sections 2 through 8, and 10 shall survive the termination of this Agreement. In the event that any restrictions, conditions, limitations or exclusions that are set forth in Section 2 of this Agreement are found to be either invalid or unenforceable, the rights granted in Section 1 shall be null, void and ineffective from the Effective Date, and Qualcomm shall also have the right to terminate this Agreement immediately, and with retroactive effect to the Effective Date,
8. EXPORT COMPLIANCE ASSURANCES. You acknowledge that all hardware, software, source code and technology (collectively, “Products”) obtained from Qualcomm are subject to the US government export control and economic sanctions laws, including the Export Administration Regulations (“EAR”, 15 CFR 730 et seq., http://www.bis.doc.gov/ ) administered by the Department of Commerce, Bureau of Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq., http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury, Office of Foreign Assets Control (“OFAC”). You assure that You, Your subsidiaries and affiliates will not directly or indirectly export, re-export, transfer or release (collectively, “export”) any Products or direct product thereof to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation. The US government maintains embargoes and sanctions against the countries listed in Country Groups E:1/2 of the EAR (Supplement 1 to part 740), currently Cuba, Iran, North Korea, Sudan and Syria but any amendments to these lists shall apply. You agree not to directly or indirectly employ any Product received from Qualcomm in missile technology, sensitive nuclear or chemical biological weapons activities, or in any manner knowingly transfer any Product to any party for any such end use. You shall not export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China. You shall not transfer any Product to any party listed on any of the denied parties lists or specially designated nationals lists maintained under said regulations without appropriate US government authorization to the extent required by regulation. You acknowledge that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with same is Your responsibility. This section shall survive the expiration or termination of this Agreement.
9. GOVERNMENT END USERS. If You are acting on behalf of an agency or instrumentality of the U. S. government, the Software and Documentation, as applicable, are "commercial computer software" and "commercial computer software documentation" developed exclusively at private expense by Qualcomm. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Software is governed by the terms of this Agreement.
10. GENERAL. This Agreement is governed and interpreted in accordance with the laws of the State of California without giving effect to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. Any claim arising out of or related to this Agreement must be brought exclusively in a federal or state court located in San Diego County, California and You consent to the jurisdiction and venue of such courts. If any provision of this Agreement shall be invalid, the validity of the remaining provisions of this Agreement shall not be affected. 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. This Agreement is the entire and exclusive agreement between Qualcomm and You with respect to the Software and supersedes all prior agreements (whether written or oral) and other communications between Qualcomm and You with respect to the Software.
11. SPECIAL DEFINITIONS.
BY CHECKING THE BOX BELOW, YOU ACKNOWLEDGE THAT: YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT; YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE LEGAL ENTITY YOU REPRESENT; YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY YOU REPRESENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.