IMPORTANT NOTICE
The product identified on the License Certificate you received, or which product bears a valid QNX license sticker (“Product”) uses QNX real-time operating system software, and related programs, for which license keys have been provided (the “Licensed Software”) by QNX Software System Ltd. (“QSS”). The Licensed Software has been adapted for use in the Product by or for the Product manufacturer who has been authorized as a value added reseller (the “VAR”) to offer the Licensed Software to you on behalf of QSS. The Licensed Software is offered only for use in accordance with the terms and conditions of the QNX End User License Agreement below, and any supplemental third party terms that may apply to the Licensed Software, which may be found at http://licensing.qnx.com. BY INSTALLING OR USING ANY LICENSED SOFTWARE YOU WILL INDICATE THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPT THESE TERMS AND CONDITIONS AND BECOME A PARTY TO THIS AGREEMENT. IF YOU ARE UNABLE OR UNWILLING TO ENTER INTO AND COMPLY WITH THIS AGREEMENT, DO NOT ATTEMPT TO INSTALL OR USE ANY LICENSED SOFTWARE. INSTEAD, PROMPTLY RETURN ANY MATERIALS THAT WERE PROVIDED TO YOU FOR A FULL REFUND. CONTACT QSS IF YOU WISH TO EVALUATE ANY LICENSED SOFTWARE, OR DISCUSS THE AGREEMENT BELOW, BEFORE YOU ATTEMPT TO INSTALL OR USE ANY PRODUCT.
1. License Rights.
(a) Grant of License. Subject to the terms
and conditions of this Agreement, and any limitations imposed as part of a
special beta test, promotional or educational program, QSS hereby grants to you
a non-exclusive, personal, non-transferable license to use the Licensed
Software on one computer solely in association with the Product. This includes
reproducing the Licensed Software, but only as reasonably required to install
and use it as intended in associated user documentation on your licensed
computer and to follow your normal back-up practices. All copies must bear all
copyright and other proprietary rights notices that appear on the Licensed
Software as originally provided by QSS.
(b) License Limitations. Subject to the
license expressly granted above, you obtain no right, title, interest or other
license in or to any Licensed Software, including but not limited to any
copyright, patent, trade secret, trademark, or other proprietary rights
therein. All whole and partial copies of the Licensed Software remain the
property of QSS or its licensors and will be considered part of the Licensed
Software for the purpose of this Agreement.
(c) Use Restrictions. Unless expressly
permitted by this Agreement, or otherwise by applicable law or by QSS in
writing, you shall not:
(i) use, reproduce, modify, adapt, translate,
update or transmit any Licensed Software, in whole or in part;
(ii) rent, lease, license, transfer, or otherwise
provide access to any Licensed Software;
(iii) disclose or provide access to your license
key(s) to any other person or attempt or assist others to defeat Licensed
Software locks or to use unauthorized license keys;
(iv) alter, remove, or cover trademarks or
proprietary notices in or on any Licensed Software;
(v) directly or indirectly, export, import or
transmit the Licensed Software to any country in contravention of the laws of
that country or the laws of Canada or the United States. Without restricting
the foregoing, the Licensed Software may contain encryption capabilities and
certain governments may regulate the export or import of the Licensed Software;
or
(vi) decompile, disassemble, decrypt, unbundle,
extract or otherwise attempt or assist others to reverse engineer any Licensed
Software, except as necessary, when permitted by an applicable law, to correct
defects or achieve interoperability with complimentary programs, for your
purposes only, but only if QSS has refused to provide the necessary information
or assistance.
Unless QSS has provided you with express written consent, the
Licensed Software may not be used in any application in which a failure of the
Software could lead to death, personal injury, or severe physical or property
damage (collectively, "High-Risk
Applications"), including but not limited to the operation of nuclear
facilities, mass transit systems, aircraft navigation or aircraft communication
systems, air traffic control, weapon systems, and direct life support machines.
QSS expressly disclaims any express or implied warranty or condition of fitness
for High-Risk Applications. . QSS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION
OF FITNESS FOR HIGH-RISK ACTIVITIES.
(d) Restricted Rights. If you are a U.S.
government or quasi-government entity, then you should be aware that the
Licensed Software is a "commercial item", as that term is defined in
48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software"
and "commercial computer software documentation", as such terms are
used in 48 CFR 12.1212 (Sept. 1995). Consistent with 48 C.F.R. 12.1212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all such customers acquire
the Licensed Software with only those rights set forth herein. Use,
duplication, or disclosure by the U.S. government is subject to restrictions as
provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013
(c)(1)(ii) (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (ALT
III), as applicable. QNX Software Systems Ltd.
(e) Tracing. QSS and its authorized
representatives shall have the right to trace Licensed Software and license key
serial numbers at any time and in any reasonable manner.
(f) Third
Party Software Parts of the Licensed Software may contain third party
code. Those terms, and any Software
authorship attribution and like notices that QSS is obliged to provide to you,
are referenced in the QNX Development
Suite & Neutrino RTOS License Guide
License Guide and are published in the corresponding Third Party Open
Source License Terms Guide which can be found through http://licensing.qnx.com/published/eula/index.html.
Unless expressly provided otherwise, all third party code is provided to you
solely for use in association with the Licensed Software.
2. Limited
Warranty
(a) Background. QSS tests the Licensed Software on specific reference platforms
(“Reference Platforms”). QSS does not
warrant that any Licensed Software will function in accordance with related
documentation in every combination of hardware platform, software environment,
and Licensed Software configuration (“Environment”). QSS is unaware of the
Environment in which the Licensed Software has been provided to you. The
responsibility for integrating and testing the Licensed Software to ensure it
is suitable for your Environment lies with your VAR.
(b) Warranty. QSS warrants to you for a
period of 90 days from acceptance of this Agreement (as provided above) that
each Licensed Software module as delivered by QSS is capable of performing the
functions described in related QSS user documentation when used on Reference
Platforms. QSS also warrants that any associated QSS media will be free from
defects in material and workmanship under normal use for a period of 90 days
from acceptance of this Agreement. QSS is not responsible for media defects
that result from accident or abuse. Your sole remedy for any breach of warranty
will be to either: (i) terminate this Agreement and receive a refund of any
associated license fees paid to QSS; or (ii) to receive replacement media. QSS
has no obligation under this Agreement to provide maintenance, support, or
training.
(c) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE
LICENSED SOFTWARE PRODUCTS AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE
PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON- INFRINGEMENT. NOTHING STATED
IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY LICENSED SOFTWARE WILL
BE UNINTTERUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. OTHER WRITTEN
OR ORAL STATEMENTS BY QSS, ITS REPRESENATITVES OR OTHERS DO NOT CONSTITUTE
WARRANTIES OF QSS.
3. Limitation of Liability.
(a) Limitation. IN NO EVENT WILL QSS OR ITS SUBSIDIARIES, OR THEIR OFFICERS,
EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS, (COLLECTIVELY, QSS
AND ITS REPRESENTATIVES) BE LIABLE TO YOU, YOUR CONSULTANTS, OR ANY OTHER THIRD
PARTY FOR ANY INDIRECT, INCIDENTAL SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST OR DAMAGED DATA, OR OTHER
COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS
AGREEMENT, ANY USE OR INABILITY TO USE LICENSED SOFTWARE PRODUCTS, OR ANY
SERVICES PROVIDED OR INABILITY TO OBTAIN SERVICES, EVEN IF QSS HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF QSS AND ITS REPRESENTATIVES
FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES YOU HAVE PAID TO QSS FOR
USE OF THE LICENSED SOFTWARE UNDER THIS AGREEMENT. THE PROVISIONS OF SECTIONS
B3(c) (WARRANTY DICSCLAIMER) AND THIS SECTION 4 SHALL SURVIVE AND APPLY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Some jurisdictions curtail limitations of liability for incidental or
consequential damages, and/or limitations of implied warranties. Therefore, to
the extent prohibited by applicable law, the above limitations may not apply to
you.
(b) Third Party Beneficiaries. Certain licensors of QSS, a full list of
which is available upon request, are third-party beneficiaries to this
Agreement to the extent that this Agreement contains provisions that relate to
your use of Licensed Software in which such licensors have an interest. These
provisions are made expressly for the benefit of such licensors and are
enforceable by them in addition to QSS. NEITHER QSS NOR ANY OF ITS
REPRESENTATIVES MAKES OR PASSES ON TO YOU OR OTHER THIRD PARTIES, ANY WARRANTY
OR REPRESENTATION ON BEHALF OF QSS'S
LICENSORS.
4. Term. This Agreement commences upon your
acceptance (as described above) and will end when terminated. You may terminate
this Agreement at any time. It will be deemed to terminate immediately if you
fail to comply with any material term herein. Upon termination your license
rights end and you shall immediately destroy all whole or partial copies of all
Licensed Software and any associated license keys in your possession or
control.
5. General
(a) Entire Agreement. This Agreement and any other terms expressly
referenced by this constitutes the entire agreement between the parties
pertaining to its subject matter and supercedes any prior or contemporaneous
agreement, representation, statement, negotiation or undertaking dealing with
the same subject matter. No amendment, modification or waiver of any part of
this Agreement will be binding unless in a written document that expressly
refers to this Agreement and that is signed by both parties. The terms and
conditions of this Agreement will prevail over any inconsistent or additional
terms or conditions of either party’s purchase orders or invoices.
(b) Assignment. Subject to the export restrictions above, you may assign this
Agreement to a third party who has provided QSS with prior written
acknowledgement of their acceptance of the terms of this Agreement. In such a case you must transfer your
License Keys to the assignee and destroy all whole of partial copies of the
Licensed Software and License Keys that are in your possession or control. Any other attempted assignment or delegation
in violation of the foregoing will be void and of no effect. This Agreement
will inure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns.
(c) Governing Law. This Agreement will be governed by and construed
in accordance with the laws in force in the Province of Ontario, Canada without
regard to the conflicts of laws provisions thereof. The parties hereby
irrevocably waive: (1) the provisions of the United Nations Convention on
Contracts for the International Sale of Goods, and (2) any right to a trial by
jury regarding the resolution of any dispute between the parties hereto arising
out of or in connection with this Agreement. If any provision of this Agreement
is held by a court of competent jurisdiction to be illegal, invalid, or
unenforceable, the remaining provisions shall remain in full force and effect.
QNX is a registered trademark (in certain jurisdictions) of
QNX Software Systems Ltd. 175 Terence Matthews Crescent, Kanata, Ontario,
Canada K2M 1W8 (voice: +1 613-591-0931, fax +1 613-591-3579)
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