END USER LICENSE AGREEMENT FOR PALMSCAPE SOFTWARE ------------------------------------------------------------------------ Before using the following software and related software (hereinafter referred to as "Software"), please read the following documentation carefully. Palmscape 3.1.x English Language Version Software and incorporated software in Software are protected by the Copyright Law and international treaties regarding copyright, as well as other intellectual property laws and treaties. ILINX Inc. (hereinafter referred to as "ILINX") holds and owns the copyright and the right to license Software. Software includes third party ( hereinafter referred to as "Vendor") software that ILINX has legitimately been granted a license to use. The Software is licensed, not sold to you as long as you comply with the terms and conditions set forth in this Agreement. Please note that you are not permitted to use Software if you don't agree to any and all provisions of this Agreement. 1. GRANT OF LICENSE ILINX grants the right to use Software, in accordance to the provisions under this Agreement, to the first user who installs Software on a Personal Digital Assistant (hereinafter referred to as "PDA") that supports the Palm OS 3.x, or to the first user of the PDA on which Software is pre-installed. 2. RESTRICTIONS You may install and use Software on only one PDA for ordinary use and in the form of object code and shall not install on two or more PDAs at the same time. You shall not make copies of Software in either electronic or hardware form except for initial installation on PDA, loading into temporary memory or peripheral devices for ordinary use, or making backup copies. You shall not modify, translate or merge Software, analyze it by reverse engineering, decompile, disassemble, or create derivative works in any form or by any means from the object code of Software. This license Agreement does not permit the use of ILINX's trademark or service mark; therefore you may not remove, change or obscure ILINX's indication or notice of copyright, trademark, or other proprietary rights. 3. OTHER RIGHTS GRANTED You are not granted any patent, copyright, trademark, or other proprietary rights in whole or in part that ILINX owns on Software, and shall not lease, transfer, distribute (including transmission through the Internet or other networks, and also recording on the servers connected to the networks to make such transmission possible), or sublicense Software to a third party. 4. TRANSFER OF LICENSE You may transfer the right to use Software to a third party by assigning any and all rights and obligations under this Agreement and 1) transferring in whole all types of medium, all copies in any form and documentations, or 2) transferring them in part and completely destroying whatever was not transferred whether tangible or electrical. However, you agree and certify that Software will not be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If Software has been rightfully obtained outside of the United States, you agree that you will not re-export Software, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained Software. In no way shall the copyright notice be changed or removed from Software and documentation be transferred. If any condition in this Article is not fulfilled, the transfer of the right shall not be in effect. The same rule shall apply to the next third party who is in line to receive the transferred right. 5. TERM OF LICENSE Your first use of any part of Software shall be regarded as your acceptance of the terms and conditions under this Agreement and shall validate it at the same time. 6. LIMITED WARRANTY ILINX warrants that for a period of forty-five (45) days from the date of delivery of the licensed Software, it will replace or repair within its discretion, the media and related documentations provided by ILINX, if there are any defects on them. THESE WARRANTIES REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SOFTWARE DOES NOT HOLD DURABILITY AGAINST PHYSICAL INCIDENTS OR MECHANICAL FAILURE AND IS NOT INTENDED FOR USE IN HIGHLY STABLE AND SECURE ENVIRONMENTS. ILINX OR VENDOR DOES NOT WARRANT THAT SOFTWARE WILL MEET EACH USER'S REQUIREMENTS; THAT SOFTWARE INSTALLED ON PDA WILL WORK COMPLETELY WITH OTHER INSTALLED SOFTWARE ON SUCH PDA; THAT OPERATION OF SOFTWARE WILL BE UNINTERRUPTED; THAT DURING CONNECTION WITH THE INTERNET OR OTHER NETWORKS SOFTWARE WILL BE ERROR-FREE AND WILL NOT DAMAGE HARDWARE, SOFTWARE, AND DATA CONNECTED WITH SUCH NETWORKS; OR THAT SOFTWARE WILL NOT EFFECT YOUR OR THIRD PARTY'S ELECTRONIC INFORMATION IN ANY WAY. IN NO EVENT SHALL ILINX NOR VENDOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE DISTRIBUTION, INSTALLATION, MAINTENANCE, USE OR INABILITY TO USE, SUCH AS THE INTERRUPTION OF SOFTWARE IMPLEMENTATION. AND IN NO EVENT SHALL ILINX'S NOR VENDOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT OF LICENSE FEE PAID BY YOU. SUCH LIMITATION OF LIABILITY MAY NOT APPLY TO YOU IF THE DAMAGES, LOSSES OR CAUSES OF ACTION WHICH ARE CAUSED BY INTENTIONAL ACT OR GROSS NEGLIGENCE OF ILINX OR VENDOR. 7. TERMINATION OF LICENSE This Agreement and your rights hereunder shall automatically terminate if and when you 1) fail to comply with any provision of this Agreement, 2) transfer the right to use Software to a third party according to this Agreement, or 3) destroy Software and all its copies and related documentation. Upon termination, you shall cease any and all use of Software and destroy all copies including written documentation and modified copies, if any. 8. RIGHTS AGAINST INFRINGEMENT In the event you are reasonably assumed to have infringed any provision under this Agreement, ILINX shall reserve the right to 1) make an on-site-search of the premises, where you are reasonably assumed to hold any media or copies of Software, to find any facts related to the infringement, and 2) browse, make copies and/or take photos of the related materials. On finding the fact of your infringement, ILINX shall have the right to prohibit your use of Software and claim the indemnity for any direct or indirect damages incurred by the infringement. ILINX shall not be liable for any property or psychological damages to you resulting from the search, even if your infringement is not found. 9. GOVERNING LAW AND PRIMARY COURT This Agreement shall be governed and construed in accordance with Japanese laws. ILINX and you submit to the non-exclusive jurisdiction of the Tokyo District Court in Japan with respect to all dispute arising from the interpretation and performance of this Agreement, wherever the parties' venues or places of disputes are located and regardless to the amount in dispute. Each party hereby agrees to waive its right to demand a jury trial for any cause of action. 10. SERVERABILITY Should any provision of this Agreement be or become illegal, invalid or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. 11. ENTIRE AGREEMENT This Agreement is the entire Agreement to date between you and ILINX, and supersedes any such prior written or oral agreement regarding Software. 12. US GOVERNMENT RESTRICTED RIGHTS If Software is acquired under the terms of a proposal or agreement with the United States Government or any contractor thereof, Software is subject to the following: (a) For acquisition by or on behalf of civilian agencies, as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this Commercial Software Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; (b) For acquisition by or on behalf of units of the Department of Defense ("DOD") as necessary to obtain protection as "commercial computer software" and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-2 of the DOD F.A.R. Supplement and its successors. ------------------------------------------------------------------------ Palm and Palm OS are registered trademarks of Palm Inc.