THIS QUALCOMM CLOUD SOFTWARE DEVELOPMENT KIT SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN QUALCOMM TECHNOLOGIES, INC. ("QUALCOMM") AND THE LEGAL ENTITY YOU REPRESENT (“YOU” OR “you”). QUALCOMM IS WILLING TO LICENSE THE SOFTWARE DEVELOPMENT KIT DESCRIBED BELOW, INCLUDING RELATED TOOL SETS AND 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 DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, QUALCOMM IS UNWILLING TO AND DOES NOT LICENSE THE SOFTWARE TO YOU. ANY USE OF THE SOFTWARE BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
1.1 License to Software. Subject to the terms of this Agreement, Qualcomm hereby grants to you, a nonexclusive, non-sublicensable, non-transferable, limited license, during the term of this Agreement, to download, install and use the Software in machine-readable (i.e. object code) form solely as a tool to enable the development and testing of Qualcomm AI 100 Cloud-compatible applications and solely as part of data center / cloud solution provided to you by an approved service provider. 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, non-sublicensable, nontransferable, royalty-free, limited license, during the term of this Agreement to reproduce and use internally the documentation as noted above.
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 rights and all other intellectual property rights therein. Neither the license or provision of the Software or any portion thereof by Qualcomm or its affiliates will be construed as to grant to you either expressly, by implication or by way of estoppel, any license or other right under any of such patents of QUALCOMM Incorporated or Snaptrack, Inc. You agree not to contend in any context that, as a result of the provision or use of any Software or any portion thereof, that Qualcomm or its affiliates has any obligation to extend, or you or any other party has obtained any right to, any license, whether express or implied, with respect to any patent of QUALCOMM Incorporated or Snaptrack, Inc. for any purpose. Any rights not expressly granted to you herein are reserved by Qualcomm.
2.2 Restricted Use. You shall not incorporate, link, distribute or use any third party software or code in conjunction with the Software provided to you under this Agreement in such a way that: (i) creates, purports to create or has the potential to create, obligations with respect to the Software or other Qualcomm software, including without limitation the distribution or disclosure of any source code; 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 the Software. Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use the Software or any other software provided by Qualcomm with any code or software licensed under the GNU General Public License (“GPL”), Lesser General Public License ("LGPL"), Mozilla, 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, LGPL, Mozilla or such other open source license.
2.3 Third Party Code. 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 without limitation those provided to you in any product delivery.
2.4 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 version 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.
2.5 No Transfer or Assignment. Any attempt to transfer or assign any of the rights, duties or obligations hereunder is void. You will not rent, lease, loan or otherwise in any manner provide or distribute the Software (or any portion thereof) 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 Software and all related materials and information are confidential and proprietary to Qualcomm. You agree not to disclose the Software (or any portion thereof) 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 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.
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.
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, ANY APPLICABLE LICENSORS, AND LICENSEES OF THE TECHNOLOGY (OR PORTIONS THEREOF) (FOR THE PURPOSES OF SECTIONS 5, 6, AND 7, QUALCOMM, QUALCOMM’S LICENSOR(S) AND LICENSEES OF 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.
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 AGGREGATE LIABILITY 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).
You agree to indemnify Qualcomm, against any and all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, which Qualcomm may incur as a result of or in relation to any breach of this Agreement by you. You agree to defend Qualcomm in connection with any third party claims resulting from, arising out of or in connection with any of the foregoing.
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 11 shall survive the termination of this Agreement.
You acknowledge that all products, proprietary data, know-how, software or other data or information (herein referred to as “Products”) obtained from Qualcomm are subject to the United States (U.S.) government export control laws accordingly their use, export and re-export, may be restricted or prohibited. You, therefore, agree that neither you nor your subsidiaries or affiliates will directly or indirectly export, re-export, transfer, or release, or cause to be exported or re-exported (herein referred to as “export”), any such Products or any direct Product thereof to any destination or entity prohibited or restricted under U.S. law including but not limited to U.S. government embargoed or sanctioned countries or entities, unless it shall obtain prior to export an authorization from the applicable U.S. government agency (either in writing or as provided by applicable regulation). The U.S. government currently maintains embargoes or sanctions against the following countries: Crimea – Region of Ukraine, Cuba, Iran, North Korea, and Syria. This list is amended by the U.S. government from time to time and all such amendments shall be applicable to this Agreement. You further agree that no Products received from Qualcomm will be directly or indirectly employed in or transferred to missile technology, sensitive nuclear, or chemical biological weapons end uses or in any manner transferred to any party for any such end use. This requirement shall survive any termination or expiration of this Agreement. U.S. government restrictions are implemented principally through the Export Administration Regulations (“EAR”, 15 C.F.R. §§ 730 et seq., available at http://www.bis.doc.gov/) administered by Department of Commerce, Bureau of Industry and Security and the Foreign Asset Control Regulations administered by the Department of Treasury, Office of Foreign Assets Control (“OFAC”, 30 C.F.R. Part 500 et. Seq., available at http://www.treas.gov/offices/enforcement/ofac/). Furthermore, You agree to comply with all trade laws applicable in other country jurisdictions as they pertain to import, use, export or distribution.
If you are acting on behalf of an agency or instrumentality of the United States 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.
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.
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.
YOU REPRESENT, WARRANT AND CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTATIVE 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.