EUDORA® EXTENDED MESSAGE SERVICES EMSAPI AND EMSSDK LICENSE AGREEMENT
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QUALCOMM INCORPORATED ("QUALCOMM") IS WILLING TO LICENSE ITS EUDORA EXTENDED
MESSAGE SERVICES Application Programming Interface (“emsAPI”), eudora
eXTENDED MESSAGE SERVICES SOFTWARE DEVELOPER’S KIT (“emssdk”) AND THE
ACCOMPANYING DOCUMENTATION (“LICENSED MATERIALS”) TO YOU ONLY ON THE
CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS IN THIS AGREEMENT.
BY CLICKING ON THE "I ACCEPT" 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 LICENSED MATERIALS TO YOU. IF YOU DO NOT AGREE TO
THESE TERMS YOU MUST CLICK ON THE "I DON’T ACCEPT" BUTTON AND DISCONTINUE
THE INSTALLATION PROCESS. ANY USE OF THE LICENSED MATERIALS BY YOU IS
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
1. LICENSE. Subject to the terms and conditions of this Agreement, QUALCOMM
hereby grants you a non-exclusive, non-transferable, limited license
(without the right to sublicense) to (i) download, install and use the
Licensed Materials as part of, or in conjunction with, applications
developed, distributed or implemented by you or on your behalf (the
“Plug-in(s)”); and (ii) reproduce and modify the sample code portions of the
Licensed Materials that are provided by QUALCOMM in source code format, for
the sole purpose of developing and distributing Plug-ins to end users. You
may copy the Licensed Materials only for backup purposes, provided that you
reproduce all copyright and other proprietary notices that are on the
original copy of the Licensed Materials. QUALCOMM reserves the right to
include third party code in the Software licensed to you under this
Agreement. You agree to comply with all terms and conditions imposed on you
in the applicable third party licenses including those provided to you in
any product delivery.
2. RESTRICTIONS. QUALCOMM retains all right, title, and interest in and to
the Software, and any rights not expressly granted to you herein are
reserved by QUALCOMM. Except as expressly permitted under Section 1 you may
not reverse engineer, disassemble, decompile, translate, rent, lease or loan
the Software the Software, or otherwise attempt to derive the source code of
the Software, except to the extent (if at all) 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. Any attempt to transfer any of the rights, duties or obligations
hereunder is void. Except as expressly permitted under Section 1, you may
not reproduce, distribute, publicly perform, publicly display, modify or
create derivative works of or based on the Software. Additionally, you will
not incorporate, link, distribute or use any third party software or code in
conjunction with the Software in such a way that: (i) creates, purports to
create or has the potential to create, obligations for QUALCOMM with respect
to other QUALCOMM software such as QUALCOMM’s Eudora email client software,
including without limitation any obligations such as the distribution or
disclosure of any source code of such other QUALCOMM software; or (ii)
grants, purports to grant, or has the potential to grant to any third party
any rights to or immunities under any QUALCOMM intellectual property rights
or proprietary rights, including without limitation as such rights exist in
or relate to other QUALCOMM software. Without limiting the generality of
the foregoing, you shall not incorporate, link or use the Software with any
code or software licensed under the GNU General Public License (“GPL”) or
any other open source license, in any manner that could cause or could be
interpreted or asserted to cause the Software or other QUALCOMM software (or
any modifications thereto) to become subject to the terms of the GPL or
would cause or could be interpreted or asserted to cause the other QUALCOMM
software to become subject to any open source license that would operate to
create any obligations for QUALCOMM with respect to other QUALCOMM software,
including without limitation the distribution or disclosure of any source
code of such other QUALCOMM software.
3. TECHNICAL SUPPORT. This Agreement does not grant you any right to any
version enhancement update, or to a continuous availability of the Licensed
Materials, or to any support, telephone or other assistance. QUALCOMM may
revise or cease to provide the Licensed Materials or its functionality or
any part thereof including without limitation, loss of compatibility, denial
of access to the functionality of the EMSAPI, the EMSSDK, the EUDORA
website, servers, various directories and listings, message boards, tools,
information and databases, commercial activities related thereto or any part
thereof from any Plug-in(s), from time to time without notice.
4. CONFIDENTIALITY. The Licensed Materials and all related information are
confidential and proprietary to QUALCOMM. You agree not to disclose the
Licensed Materials or any information relating to the Licensed Materials
(including without limitation the results of use or testing) to any third
party without QUALCOMM’s prior written permission. Unauthorized use or
disclosure of 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.
5. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE
LICENSED MATERIALS IS AT YOUR SOLE RISK. THE LICENSED MATERIALS (AND
TECHNICAL SUPPORT, IF ANY) IS PROVIDED "AS IS", “AS AVAILABLE” 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 LICENSED MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF
THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS
IN THE LICENSED MATERIALS WILL BE CORRECTED. FURTHERMORE, QUALCOMM DOES NOT
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE
USE OF THE LICENSED MATERIALS 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 THIS 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 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 THE USE OR INABILITY TO USE THE LICENSED MATERIALS, EVEN IF QUALCOMM
OR ITS AUTHORIZED REPRESENTATIVE 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. 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, INDEMNITY OR OTHERWISE) EXCEED $10.
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 your breach of this Agreement.
8. TERM AND TERMINATION. This Agreement shall continue until terminated.
You may terminate the Agreement at any time by deleting all copies of the
Licensed Materials and all related information. This Agreement terminates
immediately and automatically, with or without notice, if you fail to comply
with any provision hereof, including without limitation, in the event your
Plug-in(s) (a) disrupts or has the potential to disrupt any services offered
by QUALCOMM or any third party; (b) violates any right, including any
intellectual property right, of QUALCOMM or any third party; (v) violates
any applicable law or governmental regulation; or (d) subjects QUALCOMM to
any actual or potential harm or other liability. Additionally, either party
may at any time terminate this Agreement, without cause, upon notice to the
other party. Upon termination you must delete or destroy all copies of the
Licensed Materials in your possession. Sections 2 through 7, 9, 12 and 13
survive termination.
9. EXPORT. The Licensed Materials may contain strong encryption that is
subject to the laws and regulations of the US Government. Licensee agrees
and certifies that neither the Licensed Materials nor any other technical
data received from QUALCOMM, nor the direct product thereof, will be
exported, re-exported, or transferred except as authorized and as permitted
by the laws and regulations of the United States Government. Prohibited
exports include but are not limited to; the export, re-export, or transfer
of the Licensed Materials or technical data to any prohibited entities or
destinations subject to the US Government's current list of restricted or
embargoed countries, any parties currently listed on the US Government's
Denied Parties or Specially Designated National list, and any proliferation
activities prohibited by the US Government such as chemical, biological,
nuclear or missile technology.
10. GOVERNMENT END USERS. If you are or are acting on behalf of an agency
or instrumentality of the United States Government, the Licensed Materials,
as applicable, is "commercial computer software" and "commercial computer
software documentation" and pursuant to FAR 12.212 or DFARS 227 7202 and
their successors, as applicable, use, reproduction and disclosure of the
Licensed Materials is governed by the terms of this Agreement.
11. CONTRACTING PARTIES. If the Licensed Materials are 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 executing
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. NO ASSIGNMENT. The license rights granted under this Agreement are to
you personally and you agree not to transfer, assign, sublicense nor pledge
in any manner whatsoever, any of your rights or obligations under this
Agreement. Any attempted assignment by you shall be null and void. QUALCOMM
may transfer, assign, sublicense or pledge in any manner whatsoever, any of
its rights and obligations under this Agreement to a subsidiary, affiliate
successor thereof or to any third party whatsoever, without notifying you or
receiving your consent.
13. 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 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
Licensed Materials and supersedes all prior agreements (whether written or
oral) and other communications between QUALCOMM and you with respect to the
Licensed Materials.
COPYRIGHT © 2005 BY QUALCOMM INCORPORATED. ALL RIGHTSRESERVED.
QUALCOMM AND EUDORA ARE REGISTERED TRADEMARKS OF QUALCOMM INCORPORATED. ALL
OTHER TRADEMARKS AND SERVICE MARKS ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS.
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