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END USER LICENSE AGREEMENT
Effective September 07, 2007
Motorola is willing to license its Motorola Expedience Connection Manager and Driver Software (defined as “Products” below) and the accompanying documentation to you only on the condition that you accept all the terms in this License Agreement (“Agreement”).
1. Definitions. In this Agreement, the word “Software” refers to the set of instructions for computers, in executable form and in any media, (which may include diskette, CD-ROM, downloadable internet, hardware, or firmware) licensed to you. The word “Documentation” refers to electronic or printed manuals and accompanying instructional aids licensed to you. The word “Product(s)” refers to the specific combination of Software and Documentation that you have licensed and which has been provided to you under the terms of this Agreement.
2. Grant of License. Motorola, Inc. (“Motorola”) grants you (“Licensee” or “you”) a personal, nonexclusive, nontransferable license to use the Products subject to the Conditions Of Use set forth in Section 3 below and the terms and conditions of this Agreement. Any terms or conditions appearing on the face or reverse side of any purchase order, purchase order acknowledgment or other order document that are different from, or in addition to, the terms of this Agreement will not be binding on the parties, even if payment is accepted. Any violation of this Section 2 and/or Section 3 shall immediately terminate this license grant.
3. Conditions of Use. Any use of the Products outside of the conditions set forth herein is strictly prohibited and will be deemed a breach of this Agreement.
3.1 You shall use the Products (i) only for your personal use; (ii) only as described in the Products; and (iii) in strict accordance with this Agreement.
3.2 The Products may not be transferred to another party without the express written consent of Motorola, regardless of whether or not such transfer is accomplished by physical or electronic means.
3.3 Portions of the Products are protected by United States copyright laws, international treaty provisions, and other applicable laws. Therefore, you must treat the Products like any other copyrighted material (e.g., a book or musical recording) except that you may either: (i) make 1 copy of the transportable part of the Products (which typically is supplied on diskette, CD-ROM, or downloadable internet), solely for back-up purposes; or (ii) copy the transportable part of the Products to a PC hard disk, provided you keep the original solely for back-up purposes. If the Documentation is in printed form, it may not be copied. If the Documentation is in electronic form, you may print out 1 copy, which then may not be copied. With regard to the copy made for backup or archival purposes, you agree to reproduce any Motorola copyright notice, and other proprietary legends appearing thereon. Such copyright notice(s) may appear in any of several forms, including machine-readable form, and you agree to reproduce such notice in each form in which it appears, to the extent it is physically possible to do so. Unauthorized duplication of the Software or Documentation constitutes copyright infringement, and in the United States is punishable in federal court by fine and imprisonment.
3.4 You shall not export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, the Products under this Agreement.
4. Title; Restrictions. You shall not, and shall not permit others to: (i) modify, translate, decompile, bootleg, reverse engineer, disassemble, or extract the inner workings of the Software or Documentation, (ii) copy the look-and-feel or functionality of the Software or Documentation; (iii) remove any proprietary notices, marks, labels, or logos from the Software or Documentation; (iv) rent or transfer all or some of the Software or Documentation to any other party without Motorola’s prior written consent; or (v) utilize any computer software or hardware which is designed to defeat any copy protection device, should the Products be equipped with such a protection device. If the Products contain Software or Documentation that is provided on multiple types of media (such as diskette, CD-ROM, downloadable internet), then you shall only use the medium which best meets your specific needs, and shall not loan, rent, lease, or transfer the other media contained in the package without Motorola’s written consent. Unauthorized copying of the Software or Documentation, or failure to comply with any of the provisions of this Agreement, will result in automatic termination of this license. Title and copyrights to the Products and any copies made by you remain with Motorola and its licensors.
5. Confidentiality. You acknowledge that all Products contain valuable proprietary information and trade secrets and that unauthorized or improper use of the Products will result in irreparable harm to Motorola for which monetary damages would be inadequate and for which Motorola will be entitled to immediate injunctive relief. Accordingly, you will limit access to the Products to those of your employees and agents who need to use the Products for your internal business purposes, and you will take appropriate action with those employees and agents to preserve the confidentiality of the Products, using the same degree of care to avoid unauthorized or improper disclosure as you use for the protection of your own proprietary software, but in no event less than reasonable care.
Notwithstanding anything to the contrary herein, you shall have no obligation to preserve the confidentiality of any proprietary information that: (i) was in the public domain at the time of disclosure; (ii) entered the public domain through no fault of yours; (iii) was given to you free of any obligation to keep it confidential; (iv) is independently developed by you; or (v) is disclosed as required by law provided that you notify Motorola prior to such disclosure and provide Motorola with a reasonable opportunity to respond.
6. Right to Use Motorola’s Name. Except as required in Section 3.4 above, you shall not, during the term of this Agreement or thereafter, use any trademark, of Motorola, or any word or symbol likely to be confused with any Motorola trademark, either alone or in any combination with another word or words.
7. Maintenance. Motorola shall not be responsible for maintenance or field service of the Software under this Agreement.
8. Disclaimer. MOTOROLA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. MOTOROLA SPECIFICALLY DISCLAIMS ANY WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILTY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCTS ARE PROVIDED “AS IS.” MOTOROLA DOES NOT WARRANT THAT 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. MOTOROLA MAKES NO WARRANTY WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE AND DOCUMENTATION. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
9. Limitation of Liability. THE TOTAL LIABILITY OF MOTOROLA UNDER THIS AGREEMENT FOR DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE PRODUCTS LICENSED UNDER THIS AGREEMENT. IN NO EVENT WILL MOTOROLA BE LIABLE IN ANY WAY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER MOTOROLA HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. Some jurisdictions do not permit limitations of liability for incidental or consequential damages, so the above exclusions may not apply to you.
10. U.S. Government. If you are acquiring the Products on behalf of any unit or agency of the U.S. Government, the following shall apply. Use, duplication, or disclosure of the Products is subject to the restrictions set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of the Products is subject to the restricted rights set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. Software and Documentation may or may not include a Restricted Rights notice, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall each continue to apply, but only to the extent that such terms and conditions are not inconsistent with the rights provided to you under the aforementioned provisions of the FAR and DFARS, as applicable to the particular procuring agency and procurement transaction.
11. Term of License. Your right to use the Products will terminate immediately without notice upon a breach of this Agreement by you. Otherwise, this Agreement may be terminated by either party upon 30 days prior written notice. You may not sublicense, assign or transfer the license or the Products, except as expressly provided in this Agreement. Any attempt to otherwise sublicense, assign or transfer any of the rights, duties or obligations hereunder is null and void.
12. Governing Law. This Agreement shall be governed by the laws of the United States of America to the extent that they apply and otherwise by the laws of the State of Illinois.
13. Assignment. This Agreement may not be assigned or otherwise transferred by you.
14. Survival of Provisions. The parties agree that where the context of any provision indicates an intent that it shall survive the term of this Agreement, then it shall survive.
15. Entire Agreement. This Agreement contains the parties’ entire agreement regarding your use of the Products and may be amended only in writing signed by both parties, except that Motorola may modify this Agreement as necessary to comply with applicable laws and regulations including FCC regulations.
MOTOROLA and the Stylized M logo are registered in the US Patent & Trademark Office.
Smith Micro, INC.
SOFTWARE LICENSING AND DISTRIBUTION AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. USING ANY PART OF THE SOFTWARE INDICATES THAT YOU ACCEPT THESE TERMS.
The software accompanying this License whether on disk, CD, or on any other media (collectively the "Software") are licensed, not sold, to you. You own the media on which the Software is recorded but Smith Micro Software, Inc. and/or its licensor(s) (the "Manufacturer") retain title to the Software. The Software in this package and any copies which this License authorizes you to make are subject to this License.
PERMITTED USES AND RESTRICTIONS
This License allows you to install and use the Software on a single computer or digital device at a time. This License does not allow the Software to exist on more than one computer at a time. You may make one copy of the Software in machine-readable form for backup purposes only. The backup copy must include all copyright information contained on the original. Except as permitted by applicable law and this License, you may not decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, create derivative works from the Software or transmit the Software over a network. You may, however, transfer your rights under this License provided you transfer the related documentation, this License and a copy of the Software to a party who agrees to accept the terms of this License and destroy any other copies of the Software in your possession. Your rights under this License will terminate automatically without notice if you fail to comply with any term(s) of this License.
This software contains trade secrets and proprietary know-how belonging to the Manufacturer and it is being made available to you in strict confidence. You may copy, use, download, install or otherwise benefit from the functionality or intellectual property of this Software only in strict accordance with this license agreement and any separate license agreements associated with third party software components that may be provided. Any use or disclosure of this Software, or its algorithms, protocols, or interfaces, other than in strict accordance with this license agreement is prohibited. You are also prohibited from disassembling and reverse engineering the Software, and from using, distributing and copying any subcomponents or files in any manner including on a stand alone basis.
DISCLAIMER OF WARRANTY ON SOFTWARE
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND AND THE MANUFACTURER ITS SUPPLIERS, DISTRIBUTORS AND ANY LICENSOR(S) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND/OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. THE MANUFACTURER 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, THE MANUFACTURER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE MANUFACTURER OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT THE MANUFACTURER OR ANY AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMER OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO YOU, IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO SIXTY (60) DAYS FROM THE DATE YOU FIRST INSTALLED THE SOFTWARE ON YOUR COMPUTER; PROVIDED, HOWEVER, THAT YOUR SOLE AND EXCLUSIVE REMEDY, AND MANUFACTURER'S SOLE OBLIGATION SHALL IN ANY CASE BE THAT MANUFACTURER WILL, AT ITS OPTION, REPAIR OR REPLACE YOUR COPY OF THE SOFTWARE, OR TERMINATE THIS LICENSE AGREEMENT AND REFUND AMOUNTS ALREADY PAID THEREFOR BY YOU.
LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE EXTENT PERMITTED BY THE LAW OF THE JURISDICTION IN WHICH LICENSEE OBTAINED THIS LICENSE, MANUFACTURER, ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF INFORMATION, LOST PROFITS AND BUSINESS INTERRUPTION, AND THE COST TO OBTAIN SUBSTITUTE SOFTWARE, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SOFTWARE HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF MANUFACTURER, ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE MANUFACTURER'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT PAID FOR THIS LICENSE TO THE SOFTWARE.
EXPORT LAW ASSURANCES
Export, re-export of this Software is governed by the laws and regulations of the United States and import laws and regulations of certain other countries. Export or re-export of Software to any entity on the Denied Parties List and other lists promulgated by various agencies of the United States Federal Government is strictly prohibited.
U. S. GOVERNMENT END USERS
The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as applicable. The Manufacturer is Smith Micro Software, Inc., 51 Columbia, Aliso Viejo, CA 92656.
CONTROLLING LAW AND SEVERABILITY
If there is a local subsidiary of the Manufacturer in the country in which the Software License was purchased, then the local law in which the subsidiary sits shall govern this License. Otherwise, this License shall be governed by the laws of the United States and the State of California, except for its conflicts of laws principles. Exclusive jurisdiction over and venue of any suit arising out of or relating to this Agreement will be in the state and federal courts of Orange County, California. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by the Manufacturer.
"QuickLink Mobile" and the Smith Micro logo are trademarks or registered trademarks of Smith Micro Software, Inc. All other trademarks are and shall remain the property of their respective owners. All rights reserved.