QUALCOMM INCORPORATED® ("QUALCOMM") IS WILLING TO LICENSE ITS EUDORA VERSION 6.0 SOFTWARE INCLUDING ACCOMPANYING PUREVOICE(TM) PLAYER-RECORDER AND PUREVOICE(TM) PLUG-IN (THE "SOFTWARE") AND THE ACCOMPANYING DOCUMENTATION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS 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. Subject to the terms and conditions of this License Agreement, QUALCOMM hereby grants you a nonexclusive license to install and use the Software in machine-readable form for testing and evaluation purposes, or purchased licensed copy on a single personal computer, provided that if you are an individual, on one or more personal computers in your household or home office owned or controlled by you for use by yourself. 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.
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. You may not reverse engineer, disassemble, decompile, or translate 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. You may not rent, lease or loan the Software. You may not reproduce (except as expressly permitted under Section 1), distribute, publicly perform, publicly display, modify or create derivative works of or based on the Software.
3. TECHNICAL SUPPORT. Limited technical support (via telephone or email response) may be available for a limited period of time if you use the Software in "Paid Mode". Information regarding availability, nature and conditions of limited technical support may be found at www.eudora.com/techsupport.
4. 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 4, 5 AND 6, 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 THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
5. 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 SOFTWARE, 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, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR $10.
6. 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.
7. TERM AND TERMINATION. This Agreement shall continue until terminated. You may terminate the Agreement at any time by deleting all copies of the Software and all related information. 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. Sections 2, 4 through 6, 8, 9 and 11 survive termination.
8. EXPORT. The Software contains strong encryption that is subject to the laws and regulations of the US Government. Licensee agrees and certifies that neither the Software 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 Software 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.
9. GOVERNMENT END USERS. If you are or are acting on behalf of an agency or instrumentality of the United States Government, the Software, 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 Software is governed by the terms of this Agreement.
10. 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 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.
11. 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 Software and supersedes all prior agreements (whether written or oral) and other communications between QUALCOMM and you with respect to the Software.
COPYRIGHT (C) 2003 BY QUALCOMM INCORPORATED. ALL RIGHTS RESERVED.
QUALCOMM® IS A REGISTERED TRADEMARK AND REGISTERED SERVICE MARK OF QUALCOMM INCORPORATED. PUREVOICE(TM) IS A TRADEMARK OF QUALCOMM INCORPORATED. ALL OTHER TRADEMARKS AND SERVICE MARKS ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS.
