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P51_EN.book Page 86 Tuesday, August 15, 2006 5:16 PM
License Agreement
This License Agreement ("Agreement") is between You and BenQ Mobile GmbH & Co. OHG ("BenQ"). The
Agreement authorizes You to use the Licensed Software, specified in Clause 1 below, which may be included in your phone, stored on a CD-ROM, sent to You by electronic mail or over the air, downloaded from BenQ Web pages or servers or from other sources under the terms and conditions set forth below.
Read this Agreement carefully before using your phone.
By using your phone or installing, copying, and/or using the Licensed Software, You acknowledge that You have read and understood the Agreement and agree to be bound by all of the terms and conditions stated below.
You further agree that if BenQ or any licensor of BenQ
("Licensor") is required to engage in any proceeding, legal or otherwise, to enforce their rights under this Agreement, BenQ and/or its Licensor shall be entitled to recover from You, in addition to any other sums due, reasonable attorney's fees, costs and disbursements. If
You do not agree to all of the terms and conditions of this
Agreement, do not install or use the Licensed Software.
This Agreement governs any Updates, releases, revisions, or enhancements to the Licensed Software.
1.
LICENSED SOFTWARE. As used in this Agreement, the term "Licensed Software" means collectively: all the software in Your phone, all of the contents of the disk(s),
CD-ROM(s), electronic mail and its file attachments, or other media with which this Agreement is provided and includes any related BenQ or third party software and upgrades, modified versions, updates, additions and copies of the Licensed Software, if any, distributed over the air, downloaded from BenQ Web pages or servers or from other sources.
2.
COPYRIGHT. The Licensed Software and all related rights, without limitation including proprietary rights therein, are owned by BenQ, its Licensors or affiliates and are protected by international treaty provisions and all applicable national laws. This Agreement does not convey to You nor allow You to acquire any title or ownership interest in the Licensed Software or rights therein. The structure, organization, data and code of the Licensed
Software are the valuable trade secrets and confidential
86 License Agreement information of BenQ, its Licensors or affiliates. You must reproduce and include the copyright notices with any permitted copies You make of the Licensed Software.
3.
LICENSE AND USE. BenQ grants to You a non-exclusive, non-transferable end user right to install the Licensed Software or use the Licensed Software installed on the phone. The Licensed Software is licensed with the phone as a single integrated product and may be used with the phone only as set forth in these licensing terms.
4.
LIMITATIONS ON LICENSE. You may not copy, distribute, or make derivative works of the Licensed Software except as follows:
• You may make one copy of the Licensed Software, excluding the documentation, as an archival backup copy of the original. Any other copies You make of the Licensed Software are in violation of this
Agreement.
• You may not use, modify, or transfer the right to use the Licensed Software other than together with the accompanying hardware or copy the Licensed
Software except as expressly provided in this
Agreement.
• You may not sublicense, rent or lease the Licensed
Software.
• You may not reverse engineer, decompile, modify, or disassemble those Licensed Software programs except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Parts of the Licensed Software may be supplied by third parties and may be subject to separate license terms. Such terms are set out within the documentation.
5.
MISUSE OF THE LICENSED SOFTWARE OR DA-
TA GENERATED BY THE LICENSED SOFTWARE IS
STRICTLY PROHIBITED BY BENQ, MAY VIOLATE
GERMAN, U.S. AND OTHER LAWS AND MAY SUB-
JECT YOU TO SUBSTANTIAL LIABILITY. You are solely responsible for any misuse of the Licensed Software under this Agreement and for any liability or damage related in any way to your use of the Licensed Software in violation of this Agreement. You are also responsible for using the Licensed Software in accordance with the limitations of this Agreement.
P51_EN.book Page 87 Tuesday, August 15, 2006 5:16 PM
6.
TERMINATION. This Agreement is effective from the first date You install, copy or otherwise use the Licensed Software. You may terminate this license at any time by deleting or destroying the Licensed Software, all back up copies and all related materials provided to You by BenQ. Your license rights terminate automatically and immediately without notice if You fail to comply with any provision of this Agreement. The rights and obligations under sections 2, 5, 6, 7, 9, 12 and 13 of this Agreement shall survive the termination of this Agreement.
7.
YOU ACKNOWLEDGE THE LICENSED SOFT-
WARE IS PROVIDED "AS IS" AND NEITHER BENQ
NOR ANY OF ITS LICENSORS MAKE ANY REPRESEN-
TATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE WARRAN-
TIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR THAT THE LICENSED
SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY
PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER
RIGHTS. THERE IS NO WARRANTY BY BENQ OR ITS
LICENSORS OR BY ANY OTHER PARTY THAT THE
FUNCTIONS CONTAINED IN THE LICENSED SOFT-
WARE WILL MEET YOUR REQUIREMENTS OR THAT
THE OPERATION OF THE LICENSED SOFTWARE
WILL BE UNINTERRUPTED OR ERROR-FREE AND
BENQ AND ITS LICENSORS HEREBY DISCLAIM ANY
AND ALL LIABILITY ON ACCOUNT THEREOF. NO
ORAL OR WRITTEN INFORMATION OR ADVICE GIV-
EN BY A BENQ REPRESENTATIVE SHALL CREATE A
WARRANTY OR IN ANY WAY AFFECT THIS DIS-
CLAIMER. YOU ASSUME ALL RESPONSIBILITY TO
ACHIEVE YOUR INTENDED RESULTS AND FOR THE
INSTALLATION, USE, AND RESULTS OBTAINED
FROM IT.
8.
NO OTHER OBLIGATIONS. This Agreement creates no obligations on the part of BenQ other than as specifically set forth herein.
9.
LIMITATION OF LIABILITY. IN NO EVENT
SHALL BENQ, ITS EMPLOYEES, LICENSORS, AFFILI-
ATES OR AGENTS BE LIABLE FOR ANY DIRECT DAM-
AGES, LOST PROFITS, DATA OR BUSINESS, OR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, PROPERTY DAMAGE, INTERRUPTION OF
BUSINESS OR FOR ANY SPECIAL, INDIRECT, INCI-
DENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED,
AND WHETHER ARISING UNDER CONTRACT, TORT,
NEGLIGENCE, OR OTHER THEORY OF LIABILITY, OR
ARISING OUT OF THE USE OF OR INABILITY TO USE
THE LICENSED SOFTWARE, EVEN IF BENQ IS AD-
VISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATION OF LIABILITY SHALL NOT APPLY
IF AND TO THE EXTENT BENQ´s LIABILITY IS MAN-
DATORY UNDER THE APPLICABLE LAW E.G. AC-
CORDING TO PRODUCT LIABILITY LAW OR IN THE
EVENT OF INTENTIONAL MISCONDUCT, PERSONAL
INJURY OR DEATH.
10. TECHNICAL SUPPORT. BenQ and its Licensors have no obligation to furnish You with technical support unless separately agreed in writing between You and
BenQ or the applicable Licensor.
BenQ and where applicable its Licensors in the Licensed
Software shall be free to use any feedback received from
You resulting from your access to and use of the Licensed
Software for any purpose including (without limitation) the manufacture, marketing and maintenance or support of products and services.
11. EXPORT CONTROL. The Licensed Software may include technical data and cryptographic software and is subject to German, European Union and U.S. export controls and may be subject to import or export controls in other countries. You agree to strictly comply with all applicable import and export laws and regulations. Specifically, You agree, to the extent required by U.S. Export
Administration Regulations, that You shall not disclose or otherwise export or re-export the Licensed Software or any part thereof delivered under this Agreement to (a)
Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country (including a national or resident of such country) to which the U.S. has restricted or prohibited the export of goods or services.
12. APPLICABLE LAW AND FORUM. The laws of Germany govern this Agreement. No choice of law rules of any jurisdiction will apply. The courts in Munich shall settle any disputes arising out of or relating to this Agreement provided you are a merchant.
13. MISCELLANEOUS. This Agreement represents the entire agreement between You and BenQ relating to the
Licensed Software and (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and
(ii) prevails over any conflicting or additional terms of
License Agreement 87
P51_EN.book Page 88 Tuesday, August 15, 2006 5:16 PM any acknowledgement or similar communication between the parties during the term of this License. Notwithstanding the foregoing, some products of BenQ may require You to agree to additional terms through an online "click-wrap" license, and such terms shall supplement this Agreement. If any provision of this Agreement is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this Agreement, and this Agreement shall be enforced to the full extent allowable under applicable law. No modification to this
Agreement is binding, unless in writing and signed by a duly authorized representative of each party. This Agreement shall be binding on and shall inure to the benefit of the heirs, successors, and assigns of the parties hereto.
The failure of either party to enforce any right resulting from the breach of any provision of this Agreement by the other party will not be deemed a waiver of any right related to a subsequent breach of such provision or any other right hereunder. Notwithstanding anything to the contrary in this Agreement, BenQ and/or its licensors may enforce its rights, including but not limited to copyright, trademark or trade names, in accordance with the rules of law in each country.
88 License Agreement
P/N: 4J.G3D01.001
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