This Agreement is a legally binding contract between you - either an individual or a legal entity - (hereinafter referred to as "Licensee") and ST-Ericsson SA, a company incorporated under the laws of Switzerland (hereinafter referred to as "ST-Ericsson").
IMPORTANT - PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. THIS IS A LEGALLY BINDING AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON BELOW, OR BY DOWNLOADING OR INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ARE NOT AUTHORISED TO ACCEPT AND AGREE TO THE TERMS OF THE AGREEMENT, DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE.
ST-Ericsson and Licensee are each hereinafter also referred to as the "Party" and, collectively, as the "Parties."
1.1 Wherever used in this Agreement, the following terms shall have the meanings set forth below:
"Licensee's Applications" means applications and other software developed by Licensee which are intended to interface with and/or run on the Snowball Kit.
"Limited License Purpose" shall mean the limited license granted under Article 2.1 below.
"Snowball Kit" means the hardware products "SKY-S9500-ULP-Cxy" where x and y are integers between "0" and "9".
"Software" shall mean the ST-Ericsson's software for the A9500 platform delivered in binary or in source for the related header files, including any copies and new releases thereof.
1.2 Other capitalized expressions used in this Agreement shall have the meanings respectively assigned to them elsewhere in this Agreement.
1.3 Words indicating the singular only also include the plural and vice-versa, where the context so requires.
1.4 The headings of the Articles in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
2 LICENSE GRANT
2.1 Subject to the terms and conditions in this Agreement, STEricsson hereby grants to Licensee a non-exclusive, non-transferable, limited license to use and reproduce the Software solely to the extent required in order to (i) develop Licensee's Applications that interface with and/or run with the Snowball Kit; and (ii) integrate the Software with Licensee Application and/or third party software; and (iii) conduct development testing of the Licensee's Applications' or third party software operation in conjunction with the Snowball Kit and/or Licensee's demonstration of such Licensee's Applications in conjunction with the Snowball Kit (hereinafter "Limited License Purpose"). The Licensee is entitled to flash the Software on a commercial product containg the Snowball Kit. The aforesaid license to the Software is provided that all and any use of the Software is solely and exclusively used on the Snowball Kit.
2.2 Some portion of the Software might contain Open Source Software. Such Open Source Software might be subject to Open Source Terms applicable for each such portion, as further specified in the Software. Such Open Source Software is supplied to Licensee solely under the applicable Open Source Terms and is not subject to the terms of this Agreement.
2.3 Licensee shall not, and shall not permit any third party to alter, change, modify, adapt, decompile, disassemble, compile or reverse engineer or remove or circumvent any protection or other restrictive technology mechanism of the the Software and/or any and all parts thereof, or otherwise use, sub-license, assign or pledge the Software and/or any and all parts thereof other than what is expressly permitted in accordance with this Agreement.
2.4 ST-Ericsson shall retain on behalf of itself or the original owner all right title and interest to any ST-Ericsson Intellectual Property Rights, including but not limited to any patents, trademarks, copyrights, and trade secret rights, and title to copies of any and all media bearing the Software or the Snowball Kit and/or any and all parts thereof, and the Licensee acquires no interest under this Agreement to any ST-Ericsson Intellectual Property Rights or other rights other than the Limited License Purpose expressly set forth in this Article 2.
2.5 Notwithstanding anything to the contrary herein, nothing contained hereunder shall be construed as conferring any right, license or immunity, either directly or by implication, estoppel or otherwise to Licensee or any third party: (i) under any intellectual property rights of any third party; specifically, without limiting the generality of the foregoing, the sale and use of the Products are not licensed under any patents of Telefonaktiebolaget LM Ericsson, or any affiliates of such company; (ii) under any intellectual property rights of STEricsson other than explicitly granted under in this Agreement; or (iii) with respect to any trademark, trade or brand name, a corporate name of ST-Ericsson, or any other name or mark, or contraction abbreviation or simulation thereof.
3.1 All deliveries of the Software are EX-WORKS (Incoterms 2000) at ST-Ericsson's indicated facility.
4 NO REPRESENTATIONS OR WARRANTIES
4.1 The Software is delivered "as is" and all representations and warranties, express or implied, are hereby disclaimed, including, but not limited to that:
a) the Software or any part thereof is accurate or reliable for any purposes whatsoever; and
b) the use of the Software does not infringe any rights that may be held by a third party in respect of any such information.
4.2 Licensee acknowledges and agrees that any use of the Software and/or the Snowball Kit, or any other part thereof, or any use of Licensee's Applications is at Licensee's sole risk.
5 WARRANTY DISCLAIMER AND GENERAL LIMITATION OF LIABILITY
5.1 THE SOFTWARE AND/OR SNOWBALL KIT AND ANY AND ALL PARTS THEREOF ARE PROVIDED "AS IS". ST-ERICSSON MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE AND/OR SNOWBALL KIT AND OR PARTS THEREOF WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ST-ERICSSON MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE USE OF THE SOFTWARE AND/OR SNOWBALL KIT AND OR PARTS THEREOF WILL BE UNINTERRUPTED OR ERROR FREE, AND OR (II) ANY USE AND OR DISTRIBUTION OF THE SOFTWARE AND/OR SNOWBALL KIT AND OR PARTS THEREOF, WHETHER INTEGRATED INTO OTHER EQUIPMENT OR NOT, ARE FREE FROM INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND IT SHALL BE THE SOLE RESPONSIBILITY OF LICENSEE TO MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF LICENSES UNDER PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. CONSEQUENTLY, IN NO EVENT SHALL ST-ERICSSON, ITS AFFILIATES OR THEIR SUPPLIERS BE LIABLE TO LICENSEE FOR ANY LOSS OR DAMAGES (WHETHER DIRECT, INDRECT OR CONSEQUENTIAL) ARISING FROM ANY USE AND OR DISTRIBUTION OF THE SOFTWARE AND/OR SNOWBALL KIT AND OR PARTS THEREOF, WHETHER INTEGRATED INTO OTHER EQUIPMENT OR NOT, AND OR ARISING BY REASON OF THE FACT THAT THE SOFTWARE AND/OR SNOWBALL KIT AND OR ANY PARTS THEREOF ARE DEFECTIVE OR NON-CONFORMING AND OR ARISING FROM THIS AGREEMENT AND OR ANY BREACH THEREOF.
5.2 THE PARTIES AGREE THAT ANY RIGHTS AND REMEDIES THE LICENSEE MAY HAVE AND OR ANY OBLIGATIONS THAT ST-ERICSSON MAY HAVE ACCORDING TO LAW OR OTHERWISE WITH RESPECT TO ERRORS AND DEFECTS IN THE SOFTWARE AND/OR OTHER DELIVERABLES AND/OR IN ANY PART THEREOF SHALL HEREBY BE DISCLAIMED.
6.1 The license and this Agreement are effective until terminated.
6.2 Licensee agrees that each of the terms and conditions set out in this Agreement are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for ST-Ericsson to terminate this Agreement. The aforesaid is without any prejudice to other rights ST-Ericsson may have in case of breach of this Agreement.
6.3 In the event of termination of this Agreement Licensee shall immediately destroy all copies of the Software, including all portions and derivatives thereof.
7 EXPORT CONTROL
7.1 Licensee recognizes that the Software or any parts thereof may be subject to import and export regulations in certain countries. Licensee agrees that it will not knowingly export, re-export or import products, technology or Software, or any parts thereof, of ST-Ericsson, directly or indirectly, to any country to the extent export to such country at the time of export requires an export license or other governmental approval under any export control laws and regulations, without first obtaining such license or approval.
8 COMPLIANCE WITH LAWS
8.1 Licensee agrees not to use the Software in violation of, and to comply with any and all applicable law, statute, ordinance or other regulation.
9 ENTIRE AGREEMENT
9.1 This is the entire agreement between Licensee and ST-Ericsson on the subject matter of this Agreement, and supersedes all representations, undertakings and agreements previously made between the Parties with respect to the subject matter of this Agreement.
10.1 If a court or agency of competent jurisdiction holds any term of this Agreement invalid, illegal, or unenforceable for any reason, the remainder of this Agreement shall be valid and enforceable and such term shall be substituted by a valid and enforceable provision so as to the best accomplish the objectives of such provision in this Agreement.
11 GOVERNING LAW AND JURISDICTION
11.1 This Agreement shall be governed by and construed in accordance with the laws of Switzerland, without regard to its conflict of laws rules. The application of The United Nations Convention of Contracts for the International Sale of Goods is explicitly excluded.
11.2 Any and all disputes, differences or questions arising out of or in connection with this Agreement shall be under the exclusive jurisdiction of the Swiss courts and the venue shall be Geneva.
11.3 Notwithstanding the aforesaid, nothing in this Article 11 shall prevent the Parties from seeking any interim or final injunctive or equitable relief by a court of competent jurisdiction.