BREW® OEM PORTING KIT

SOFTWARE LICENSE AGREEMENT

THIS BREW OEM PORTING KIT SOFTWARE 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 BREW OEM PORTING KIT DESCRIBED IN THE TABLE BELOW, INCLUDING RELATED DOCUMENTATION, (HEREINAFTER 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 CLICKING ON THE "YES" BUTTON 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 TO YOU. IF YOU DO NOT AGREE TO THESE TERMS YOU MUST CLICK ON THE "NO" BUTTON AND DISCONTINUE THE INSTALLATION PROCESS.  ANY USE OF THE SOFTWARE BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.

1.	LICENSE FROM QUALCOMM.  

1.1	License to Software.	Subject to the terms of this Agreement, QUALCOMM hereby grants to you, free of charge, a nonexclusive, nonsublicensable, non-transferable, limited license, during the term of this Agreement, to (i) download, install and use the Software solely as a tool to integrate BREW technology with your wireless devices, and (ii) reproduce and modify the portions of the Software designated as "OEM Reference Source" in the table below, solely for integration into your wireless device.  Except as expressly permitted in the foregoing sentence, you may 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.

	1.2	License to Documentation.	QUALCOMM hereby grants you a nonexclusive, nonsublicenseable, non-transfer, royalty-free, limited license, during the term of this Agreement to reproduce and use internally the documentation described in the table below.

Porting Kit Software:
	BREW Porting Kit Libraries for the target platform
	OEM Reference Source Code and header files ("OEM Reference Source")
	AEE Source Code and header files ("AEE Source")
	Documentation associated with the Software

2.	RESTRICTIONS.  

2.1	Retention of Rights.  Except for the license granted in this Agreement, QUALCOMM retains all right, title, and interest in and to the Software, including without limitation all copyrights, patent rights and trademark and all other intellectual property rights therein.  You shall retain all right, title, and interest (including all copyrights, patent rights, and all other intellectual property rights therein) in and to any modifications to the OEM Reference Source code versions of the Software made by you as permitted in this Agreement, subject to QUALCOMM's ownership rights in and to the Software.  Any rights not expressly granted to you herein are reserved by QUALCOMM. 

2.2	No Commercialization or Distribution.  You acknowledge and agree that integration of BREW onto devices and the distribution and commercialization of any BREW-enabled devices developed by you using the Software will require and will be subject to the terms of a separately executed agreement between you and QUALCOMM pertaining thereto, including successful completion by you of QUALCOMM's designated verification testing processes. Neither you nor QUALCOMM shall be required to enter into any such agreement. No representations or warranties are made to you in this Agreement regarding such verification testing processes. 

2.3	No Reverse Engineering.  Excepting any portions of the Software provided to you in source code format, you will not reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code of the Software, except if and to the extent expressly permitted under any applicable law. If applicable law expressly permits such activities, any information so discovered or derived shall be deemed to be the confidential proprietary information of QUALCOMM and must be promptly disclosed by you to QUALCOMM.  

2.4	No Transfer or Assignment.  Any attempt to transfer or assign any of the rights, duties or obligations hereunder is void.  You may not rent, lease, loan or otherwise in any manner provide or distribute the Software or any copy of the Software to any third party without QUALCOMM's prior written consent in each instance.  You will not reproduce (except as expressly permitted under Section 1 (License From QUALCOMM)), 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 purpose stipulated in Section 1 (License Grant), and the Software shall not be used for any other purpose, including but not limited to creating, developing, improving or modifying any operating system or environment (or similar software or function) which can be run on or in conjunction with the BREW platform and which allows other applications to run on such operating system or environment.

3.	CONFIDENTIALITY.  The Software and all related information are confidential and proprietary to QUALCOMM.  You agree not to disclose the Software 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.  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.

4.	BUG REPORTS.  QUALCOMM encourages you to send to us your questions, comments or bug reports regarding the Software.  You agree that QUALCOMM shall have the right to use, without attribution or compensation to you, all feedback we receive from you, in any form, to improve or modify the Software or otherwise.

5.	NO WARRANTY.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE (AND TECHNICAL SUPPORT, IF ANY) IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, QUALCOMM AND ANY APPLICABLE LICENSORS (FOR THE PURPOSES OF SECTIONS 5, 6 AND 7, QUALCOMM AND QUALCOMM'S 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 NONINFRINGEMENT.  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.  

6.	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 THE SOFTWARE 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.  IN NO EVENT SHALL QUALCOMM'S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) EXCEED ONE HUNDRED U.S. DOLLARS (US$100). 

7.	INDEMNITY.  You agree to defend and indemnify QUALCOMM against all any and all claims, losses, liabilities, damages, costs and expenses, including attorney's fees, which QUALCOMM may incur as a result of or in connection with any breach of this Agreement by you.

8.	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 in your possession and the license granted to you in this Agreement shall terminate.  Sections 2 through 9 and Section 12 shall survive the termination of this Agreement.

9.	EXPORT/IMPORT LAW ASSURANCES.  You acknowledge that certain technical information and software that may be provided hereunder and its uses are subject to U.S. export control laws.  You understand that the Software, proprietary data, know-how or other data and direct product thereof or information obtained by or from QUALCOMM is considered to be United States technology and is licensed for export, re-export, or transfer by the United States Government.  You therefore agree that you will not, without prior written consent of QUALCOMM and the United States Department of Commerce, Bureau of Industry and Security (BIS), Washington, DC 20230, U.S.A., or any other applicable US Government agency, knowingly export, re-export, transfer or cause to be exported, re-exported, or transferred either directly or indirectly, any such Software, proprietary data, know-how, or other data or information, or any direct or indirect product thereof, to any destination or entity prohibited or restricted under United States law.  You also agree that the Software, proprietary data, know-how, or other data or information will not be directly or indirectly employed in proliferation activities such as nuclear, missile, chemical, and biological weapons end uses, or any party engaged in such activities.  You understand that the list of prohibited or restricted destinations and entities may be amended from time to time by the US Government and that all such amendments shall be applicable to this Agreement.  You understand that the foregoing obligations shall survive any term or termination of this Agreement.  You also agree to abide by all applicable laws and regulations relating to the importation and use of the Software of the jurisdiction in which you are located and in which you obtained or downloaded the Software.

10.	GOVERNMENT END USERS.  If you are or are acting on behalf of an agency or instrumentality of the U.S. Government, the Software, as applicable, is "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.

11.	CONTRACTING PARTIES.  If the Software is installed on any computer owned by a corporation or other legal entity, then this Agreement is formed by and between QUALCOMM and such entity. The individual accepting the terms of this Agreement represents and warrants to QUALCOMM that they have the authority to bind such entity to the terms and conditions of this Agreement.

12.	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.  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. 


BY CLICKING ON THE "YES" BUTTON BELOW YOU REPRESENT, WARRANTY AND CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTAVIE OF THE LEGAL ENTITY YOU REPRESENT; YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT; YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY YOU REPRESENT TO THE TERMS OF THIS AGREEMENT; AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
