Part B - Runtime License Terms
Document Version: rtlt1_01

B1. Background. QSS has developed and licenses a general purpose modular real time operating system, as well as associated software accessories (e.g., GUI, browser, etc.) and development tools (e.g., compilers, debuggers, SDKs, etc.). Developers select and license the components they need ("Development System") to develop their custom hardware and software product; this development is done pursuant to the terms of a QNX End User License Agreement ("QNX EULA"). Development includes integrating unaltered QNX linked object code program and data files ("Runtime Files") with files generated by the developer using QNX development tools (e.g., to tailor the operation and appearance of the operating system) and with files that have been independently created or licensed. This Agreement authorizes OEM to make and distribute copies of certain Runtime Files (see section B2(l)) as an integral part of OEM's product (see section B2(m). It does not supercede the QNX EULA(s).

B2. General Definitions. In this Agreement:

  1. "Agreement" means Runtime Quotation (or "Part A"), this document entitled Part B - Runtime License Terms and any Part C supplements hereto as specified in section B5(i);
  2. "Agreement Year" means a calendar year ending on an anniversary of the Effective Date;
  3. "Commercially Released" means code that has satisfied QSS quality requirements and has been approved for full commercial release, it does not include beta or experimental code;
  4. "Configuration" means any subset of the Software as specified in Runtime Quotation. Unless otherwise indicated, each Configuration is specific for each Target System;
  5. "Documentation" means any Software and Update documentation that QSS makes generally available for use by QNX developers;
  6. "Effective Date" means the date that OEM executes or electronically accepts this Agreement, as the case may be;
  7. "License Certificate" means an original copy of a QSS issued and serialized document (in the form of a printed certificate, sticker, electronic authentication or otherwise) which authenticates the Software;
  8. "License Key" means a unique serial number provided by QSS which allows an end user to access the Software;
  9. "OEM" means the entity identified on a Runtime Quotation;
  10. "Runtime Quotation" means a formal pricing quote for the distribution of runtimes issued by QSS which includes a specific area for OEM to execute the document or which can be accepted electronically through a click-through mechanism or the like;
  11. "QSS" means QNX Software Systems Ltd. and any of its related companies specified on the Runtime Quotation;
  12. "Software" means any Commercially Released: Runtime Files that make up the software identified in the Runtime Quotation, Updates that OEM is authorized to distribute under this Agreement, QSS modifications to Open Source Software and Improvements (as defined in section B4(b)).
    1. "QNX Software" means any Software other than Third Party Software and Open Source Software;
    2. "Third Party Software" means any Runtime File that QSS sub-licenses to OEM, as specified in Section B5(i) - (k) and in corresponding Part C supplements (if applicable) in this Agreement;
    3. "Open Source Software" means published source code that is licensed for free use and distribution under an unrestricted licensing and distribution model, such as the Berkley Software Design ("BSD") and "BSD-like" licenses. It specifically excludes any source code licensed under any version of the GNU General Public License (GPL) or the GNU Lesser/Library GPL or like licenses.
  13. "Target System" means a product fitting the Target Description on the Runtime Quotation into which the Software has been wholly or partially integrated, and each of which must: (i) significantly enhance the function and value of the Software, and (ii) have substantially different principal purposes than those of the Software;
  14. "Update" means any new version of the Software that QSS makes generally available as a commercial release to its licensees to correct errors and provide minor enhancements and which is indicated by "z" in a version x.y.z; and
  15. Other capitalized terms defined in any Part of this Agreement will have their indicated meaning throughout this Agreement.

B3. License. Subject to the terms and conditions of this Agreement, including those specific to Third Party Software (see sections B5(i-k) and Part C supplements to this document, if applicable), QSS hereby grants to OEM for the term of this Agreement a non-exclusive, non-transferable, world-wide, limited license as follows:

  1. to reproduce, as an integral part of a Target System, one copy of the Software for each License Certificate that OEM has purchased from QSS or its local authorized QNX distributor for the purpose of manufacturing Target Systems. A separate License Certificate is required for each Target System manufactured;
  2. to reproduce, as part of the Target System software back-up media (if any) to be shipped with the Target System, a second copy of the Software for each License Certificate that OEM has purchased from QSS or its local authorized QNX distributor solely for use for Target System back-up purposes (i.e., not for productive use, such as in redundant systems);
  3. to distribute copies of the Software made under section B3(a-b) to end users as part of and only for use in association with corresponding Target Systems under the terms and conditions of appropriate License Certificates, both: (1) directly; and (2) indirectly by authorizing third parties to resell Target Systems and associated License Certificates ("Distributors"); and
  4. to reproduce as part of a software update for existing Target Systems, one copy of a Software Update for each corresponding Update licensed hereunder.

B4. Reservations.

  1. Limited License. No license is granted to use the Software or Documentation except in connection with the Target System as expressly provided in Section B3. QSS and its licensors reserve all right, title and interest in and to the Software and Documentation, including all associated copyright, patent, trade secret, trademark and other proprietary rights. All whole or partial copies of the Software remain the property of QSS or its licensors and form part of the Software for the purpose of this Agreement.
  2. Improvements. OEM will own authorized modifications (made using Development Systems pursuant to the QNX EULA(s) or otherwise) that it makes to the Software and Documentation, except for Improvements. In this Agreement "Improvements" means work-arounds, error corrections or enhancements that are not specific to the Target System and that OEM discloses or suggests to QSS. All right, title and interest in and to Improvements will be owned by QSS, unless QSS has otherwise expressly agreed in writing. OEM is under no obligation to make such disclosures or suggestions to QSS.
  3. Prohibitions. Except as expressly provided in this Agreement, or otherwise by QSS in writing, OEM will not (and will not authorize or assist others to): (i) use copies of the Software made hereunder for development purposes; (ii) rent, lease, license, transfer or otherwise provide third party access to the Software; (iii) update Target Systems with new Software versions or releases, except Updates that OEM is authorized to distribute hereunder; (iv) translate, decompile, disassemble, or otherwise attempt to reverse engineer or create derivative works of the Software, except as necessary, when permitted by applicable law, to correct defects or achieve inter-operability with other Target System-related programs, but only if QSS has refused to provide the necessary information or assistance; or (v) use any part of the Software for any use other than the intended use of the Software in the Target System. Unless QSS has provided its express written consent, for each QNX Software and Third Party Software module, the Software may not be, and OEM will ensure that it is not, used in any application in which the failure of the Software could lead directly to death, personal injury or severe physical or property damage (collectively, "High-Risk Activities"), including but not limited to the operation of nuclear facilities, mass transit systems, aircraft navigation or 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 Activities.
  4. U.S. Government Restricted Rights. The Software is provided under this Agreement to non-DOD agencies of the US Government with Restricted Rights and the Documentation with Limited Rights as provided by subparagraph (c) of FAR 52.227-19 ("Commercial Computer Software-Restricted Rights", June 1987). The rights of DOD agencies of the U.S. Government in the Software, Documentation, and related technical data are governed by the restrictions set forth in the Technical Data Commercial Items clause at DFARS 252.227-7015 (Nov. 1995) and DFARS Subpart 227.72 ("Rights in Computer Software and Computer Software Documentation"). Contractor / manufacturer is QNX Software Systems Ltd.
  5. No Support. Except for Updates to which OEM is entitled, if any, QSS has no obligation under this Agreement to provide OEM, its Distributors or Target System end users with maintenance, support, training or consulting services.
  6. Valid Development License Required. All license rights granted in this Agreement are contingent upon OEM having valid commercial Development System license(s).

B5. Requirements.

  1. Prepayment & Pricing. OEM will prepay QSS for all copies of Configurations to be created for each Target System ("Manufactured") under this Agreement. Each prepaid order must reference the Configuration number and specify the intended Target System ("Order"). QSS will provide one License Certificate to OEM for each pre-paid copy to authenticate licensed copies. The amount due for each Order for each Configuration will be calculated by multiplying the desired number of whole or partial copies thereof to be Manufactured by the then-effective Unit Price. The Unit Price for each Configuration will be determined by reference to the price in the Runtime Quotation which corresponds to the actual number of that Configuration Ordered in the then-current Agreement Year to the date of the Order, including the amount of the Order. For greater certainty, pricing is in a per Configuration per Target System basis and OEM cannot aggregate Orders across different Target Systems to achieve better pricing. If a price is not specified in a Runtime Quotation or a Runtime Quotation is altered by OEM without QSS' consent, then the price of each Configuration will be determined by QSS' then-current list price for all Software included in the Configuration.
  2. Authentication. OEM must provide (and require its Distributors to provide) appropriate License Certificates to authorized end-users of its Target System. If License Certificates are provided in the form of stickers, OEM will affix at least one sticker (i.e. one sticker per licensed node) to each Target System Manufactured pursuant to this Agreement and require that these stickers not be removed by Distributors. Each License Certificate authenticates a copy of the Software as having been created under this Agreement and authorizes use of that copy in the Target System on one computer. A separate License Certificate is required for each Target System. License Certificates are specific to particular Software releases and Target Systems.
  3. Distribution of Copies. OEM will ensure that any update or back-up media copy of the Target System software that includes any part of the Software must: (i) only be made available to Distributors and licensed Target System end users; or (ii) have measures to ensure that such software will only work on licensed Target Systems.
  4. Marking. OEM will not remove, cover or alter any proprietary notices, labels or marks in or on the Software, Documentation or related storage media and will ensure that all copies bear those of originals. Except as expressly required herein, OEM will not remove any attribution, logo and or trademarks that appear in any "about" box or "flash" / "splash" screen of any part of the Software.
    1. Copyright. OEM will ensure that all Target Systems and associated documentation that include any part of the QNX Software include prominent copyright notices as follows: "© 1982 - 2001, QNX Software Systems Ltd. All rights reserved."
    2. Serialization. OEM will mark each Target System with a unique identifier and will maintain records sufficient to identify the configuration and version of the Software installed and the customer to whom it shipped the Target System. OEM will also maintain, or require its Distributors to maintain, equivalent destination records for indirect distribution.
    3. Trademarks. OEM will eliminate screen display references to QSS trademarks. Unless it is granted a separate written trademark license, any display of QSS' or its licensors' trademarks, trade names, logos, or other words identifying the Software, Documentation, related services or QSS' or its licensors' businesses ("Trademarks") will be for information purposes only, will be marked with the symbol ™, and will clearly identify the owner of the Trademarks displayed.
  5. Preservation. OEM will take whatever actions and precautions are necessary to preserve and protect all ownership and other rights of QSS and its licensors in the Software when providing Target Systems and License Certificates to any agency, department or unit of any government or quasi-government authority.
  6. Support. OEM alone will be responsible for all Target System development, manufacturing, reproduction, assembly, marketing, distribution, licensing, installation, training, maintenance, updating and support.
  7. Compliance with Laws. OEM will comply with all applicable laws, rules and regulations and obtain all permits, licenses and authorizations or certificates that may be required in connection with its activities pursuant to this Agreement. This includes any laws, regulations, orders or other restrictions on the export of the Software from Canada and the USA which may be imposed from time to time by the Canadian or United States Governments. OEM will not export or re-export, directly or indirectly, the Software or information pertaining thereto to any country for which either such government or any agency thereof requires an export license or governmental approval at the time of export or re-export without first obtaining such license or approval.
  8. OEM Indemnity. OEM WILL INDEMNIFY AND HOLD QSS HARMLESS FROM ANY DAMAGES FINALLY AWARDED, AND ANY COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) INCURRED, IN ANY THIRD PARTY ACTION AGAINST QSS, ITS AFFILIATES, OR THEIR DISTRIBUTORS OR SUPPLIERS, BASED ON BODILY INJURY, PROPERTY DAMAGE OR ANY OTHER INJURY, DAMAGE, OR CLAIM ARISING OUT OF THE DISTRIBUTION, USE OR INABILITY TO USE THE TARGET SYSTEM, PROVIDED QSS PROMPTLY NOTIFIES OEM AND GIVES COMPLETE INFORMATION AND REASONABLE ASSISTANCE TO OEM (AT OEM'S EXPENSE). THIS SECTION B5(H) WILL NOT APPLY TO ANY CLAIMS UNDER SECTION B8 THAT QSS IS OBLIGED TO DEFEND, OTHER ALLEGATIONS THAT THE SOFTWARE OR DOCUMENTATION INFRINGE THIRD PARTY RIGHTS, OR ANY FINAL AWARD OF A COURT OF COMPETENT JURISDICTION BASED ON A FINDING OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF QSS.
  9. Third Party Software & QSS Licensors. Applicable terms and conditions that are unique to Third Party Software (if any) are provided in Part C supplements to this document. Proceed to the end of this document to review applicable terms and conditions for the following:

    1. Part C1 - Voyager Supplement
    2. Part C2 - Citrix Supplement
    3. Part C3 - RealPlayer Supplement
    4. Part C4 - Macromedia Supplement
    5. Part C5 - Multimedia Supplement

    OEM is hereby notified that QSS licensors are third-party beneficiaries to this Agreement in respect of provisions of this Agreement which relate to Third Party Software and other Software which QSS sub-licences to OEM. QSS' licensors include, but are not limited to, those parties identified in the applicable Supplements (if any). The identities of other applicable QSS licensors are available on request.

  10. Open Source Software. QSS has incorporated certain Third Party Software which is Open Source Software into certain Software files. This Open Source Software is identified in the QNX EULA which accompanied the Development System software and / or Updates which was installed by OEM. OEM agrees that it will be additionally bound by the terms associated with the distribution of such Open Source software outlined in the relevant QNX EULA.
  11. Updates. QSS regularly Updates the Software. There may be different Third Party Software terms associated with new Updates and QSS will include these terms with the end user license agreement which accompanies the Updates. If OEM has the right and chooses to distribute Updates under this Agreement, it agrees that it will be additionally bound by the Third Party Software terms associated with the distribution of those Updates.

B6. Payment & Record Keeping.

  1. Payment. If QSS generates an invoice in association with an Order, then all amounts invoiced by QSS will be paid within 30 days of receipt of QSS' invoice. All unpaid amounts will bear interest at a rate equal to 15% per annum, compounded monthly, or at the highest rate permitted by law, of the outstanding payment from the date due until the date paid. All payments made will be in the invoiced currency, without deduction of any kind, except as otherwise required by applicable laws. Should any such deduction be taken, OEM will obtain and provide to QSS evidence issued by the relevant authority acknowledging their receipt of the deducted amount. QSS reserves the right to withhold License Certificates to be supplied directly by QSS, or indirectly through its local authorized QNX distributor, until any amounts owing after the invoice date have been paid in full (including interest charges). All bank service charges to process transfers will be paid by OEM.
  2. Taxes. All payments made under this Agreement will be exclusive of taxes. OEM will be solely responsible for all sales or equivalent tax consequences which may flow from any delivery of the Software by QSS to OEM, or OEM's use thereof, and will pay all taxes (including sales, use, value-added and similar taxes) payable with respect to payments made by OEM to QSS under this Agreement, except for taxes based solely upon QSS' income and legally required withholding taxes.
  3. Audits. OEM will maintain for a period of 3 years after the end of the year to which they relate accurate records that are sufficient: (i) to determine the number and type of License Certificates required for Target Systems manufactured pursuant to this Agreement, and (ii) to identify OEM's customers and their Target Systems (including associated License Certificates - section B5(b) - and identification marks - section B5(d)(ii)). Upon 15 days prior notice, QSS may have an independent auditor of its choice audit royalty records, trace Software copies and/or review OEM's compliance with this Agreement during normal business hours. OEM will also provide QSS with reasonable assistance, at QSS' expense, to trace Software copies and to audit Software-related records of Distributors. Audits will not occur more than once each year unless discrepancies are discovered indicating an underpayment of more than 10% of the proper amount owed. Payment errors will be corrected immediately by an adjustment payment, which will include interest on the overdue amount in accordance with section B6(a). OEM will also reimburse QSS for its out of pocket audit costs if the underpayment is more than 10% of the proper amount owed.

B7. Limited Warranty.

  1. Acknowledgement. QSS cannot warrant the Software will function in accordance with the Documentation, or other published specifications, in the case of every hardware platform, software environment and Software configuration. OEM acknowledges that Software bugs are likely to be identified when used in the Target System and that OEM must satisfy itself that the Software is suitable for use in the Target System. OEM will ensure that the Target System has been subjected to and passed rigorous testing prior to its initial and any update release.
  2. Limited Warranty. QSS warrants to OEM for a period of 3 months commencing upon the Effective Date, that the Software, as commercially shipped by QSS, is capable of performing the functions described in applicable Documentation when used on relevant QSS reference platforms. OEM's sole remedy and QSS' sole obligation for any breach of this warranty will be, at QSS's discretion, to either: (i) provide OEM with a patch or work-around for use as an interim fix until QSS provides OEM with a free Update or Upgrade that corrects the problem and OEM acknowledges that patches and/or work-arounds made available by QSS may not have been quality assurance tested; or (ii) refund to OEM any amount that OEM has paid to QSS under this Agreement during the warranty period. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT FOR THE LIMITED REMEDIES PROVIDED ABOVE, OEM ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. OTHER WRITTEN OR ORAL STATEMENTS BY QSS, ITS REPRESENTATIVES, OR OTHERS DO NOT CONSTITUTE WARRANTIES OF QSS.
  3. Warranty to OEM Only. The limited warranties set forth in this section B7 are made solely and exclusively to OEM and OEM will be solely responsible for any warranty to, or claims by, its Distributors, or end users of the Target System concerning performance of the Software. OEM WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON, AND WILL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER IT NOR ANY OF ITS AGENTS OR EMPLOYEES WILL MAKE OR PASS ON ANY WARRANTY OR REPRESENTATION ON BEHALF OF QSS TO ANY DISTRIBUTOR, END USER CUSTOMER OR THIRD PARTY.
B8. QSS Indemnity.
  1. Indemnity. QSS will defend OEM against any Infringement claims, and indemnify and hold OEM harmless from any Infringement damages finally awarded, in any third party action against OEM, or its Distributors or Target System end users, based on the reproduction, use or distribution of QNX Software in accordance with the terms of this Agreement, provided OEM gives QSS prompt notice of, as well as all authority, information, and assistance (at QSS' expense) necessary or desirable to defend, such claims. In this section B8 "Infringement" means: (i) infringement of copyright by the QNX Software; (ii) misappropriation of trade secrets by QSS; or (iii) infringement of any US, Canadian, Japanese or EEC country national patent that had issued as of the Effective Date, where such patent infringement can be attributed to the reproduction, use or distribution of QNX Software alone or in conjunction with equipment that is essential for use of the QNX Software, where such equipment cannot be replaced with a generic functional equivalent to avoid the infringement. "Infringement" will not include any infringement or misappropriation of any kind resulting from modifications of the Software made by or for OEM.
  2. Remedy. With respect to any finding of Infringement, or any reasonable belief of QSS that Infringement may occur, QSS will, at its sole expense and option: (i) procure for OEM the right to continue using the QNX Software; (ii) replace the QNX Software with non-infringing software of comparable function; (iii) modify the QNX Software to be non-infringing; or (iv) if none of the foregoing alternatives is reasonably available to QSS, terminate OEM's rights to the QNX Software, but only to the extent necessary to avoid the Infringement. OEM will have the right to terminate all of its rights if OEM determines such partial termination renders OEM's remaining rights ineffective. Upon such full or partial termination, QSS will refund to OEM, pro-rata to the extent of such termination, the royalties paid by OEM that are associated with the terminated rights.
  3. This section B8 states OEM's exclusive remedy for infringement of intellectual property rights by the Software.
B9. Limited Liability.

IN NO EVENT WILL QSS (OR ITS OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS -COLLECTIVELY, "ITS REPRESENTATIVES") BE LIABLE TO OEM OR ANY 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 THE SOFTWARE OR DOCUMENTATION, OR ANY CLAIM MADE BY A THIRD PARTY, EVEN IF QSS OR ITS REPRESENTATIVES HAVE 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 OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR THE DOCUMENTATION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES OEM HAS PAID TO QSS UNDER THIS AGREEMENT. QSS' AND ITS REPRESENTATIVES' LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL OF QSS' AND ITS REPRESENTATIVES' PAYMENTS IN SATISFACTION OF THEIR LIABILITIES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THIS SECTION B9 WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. OEM AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES.

B10. Term & Termination.

  1. Execution. Execution. This Agreement may be executed by the parties by communicating to the other:
    1. in the case of OEM, a Runtime Quotation duly accepted by execution or by electronic acceptance by a click-through mechanism or the like;
    2. in the case of QSS, an Runtime Quotation.
    3. Term. This Agreement commences on the Effective Date and ends when terminated in accordance with this section B10.
  3. Termination by OEM. Provided it is in compliance with the other terms of this Agreement, OEM may terminate this Agreement at any time upon 30 days' prior written notice.
  4. Termination by QSS. QSS may terminate this Agreement without cause (i) up to such time as QSS fills the first order for License Certificates under this Agreement; and (ii) any time after five (5) years from the Effective Date upon 90 day's prior written notice.
  5. Change to Agreement. Circumstances may dictate that QSS change the method that the Software is distributed to OEM and /or to end users. QSS may, upon 90 days written notice, change the terms of this Agreement which relate to such distribution other than terms relating to price. If OEM chooses not to accept these changes then QSS may terminate this Agreement upon a further 30 days written notice.
  6. Immediate Termination. QSS or OEM may, to the extent permitted by applicable law, terminate this agreement immediately by written notice if the other:
    1. breaches a material term of this Agreement that: (1) is incapable of cure, (2) could have been cured within 30 days of written notice but was not, or (3) required more than 30 days to cure but the defaulting party has either failed to commence or diligently pursue the cure during such period;
    2. files, or has filed against it: (1) a petition in bankruptcy, reorganization, debt arrangement, or other proceeding under any bankruptcy law; or (2) any dissolution or liquidation proceeding; and any such proceeding under (1) or (2) is not dismissed within 60 days from filing; or
    3. becomes insolvent or ceases to carry on business on a regular basis, and within 30 days thereafter the defaulting party (or some financially and technically responsible successor in interest acceptable to the aggrieved party who assumes the defaulting party's obligations) fails to resume doing business on a regular basis.
  7. Implication of Termination.
    1. Surviving Licenses. If either party terminates this Agreement for any reason all EULAs transferred in accordance with the terms of this Agreement prior to termination will continue. All license rights of OEM will immediately cease upon termination.
    2. Surviving Provisions. The provisions of this Agreement that are expressed or by their sense and context are intended to survive the termination of this Agreement will so survive, including section B5(d), B5(g-h), B6-B9 and this section B10(g).
    3. Other Rights. Termination is without prejudice to any right or remedy which may have accrued, or be accruing to either party prior to termination. Termination will not relieve OEM of its obligation to pay QSS any and all amounts due under this Agreement prior to the date of termination, which amounts shall become immediately payable upon termination. Any pre-payment of Software royalties is non- refundable.
B11. General.
  1. Entire Agreement. Except as expressly provided, this Agreement 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. If there are any disagreements or inconsistencies between this Agreement, a License Certificate or any end user license agreement, this Agreement will prevail. No amendment, modification or waiver of any provision of this Agreement will be binding unless in a written document that expressly refers to this Agreement and is signed by both parties.
  2. Assignment. Neither party may assign this Agreement, or assign any rights or delegate any obligations under this Agreement, without the prior written consent of the other party except that QNX Software Systems Ltd. and any wholly owned subsidiary thereof ("QSS Group") may assign this Agreement within the QSS Group without consent of OEM. An assignment will be deemed to include any merger of OEM with another party, whether or not OEM is the surviving entity, the acquisition of more than 50% of any class of OEM's voting stock by another party, or the sale of more than 50% of OEM's assets. Any 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.
  3. Governing Law. This Agreement will be governed by and construed in accordance with the local domestic 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.
  4. Notice. All notices must be in writing and delivered either in person or by means evidenced by a delivery receipt, to the person and address specified in Part A, and in the case of QSS with a copy to the same address, Attention: Contracts Administration. Such notice will be effective upon receipt.
  5. Severance. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
  6. Independent Parties. The parties hereto are independent contractors. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party. Nothing in this Agreement will be construed to create a partnership, joint venture, employment or agency relationship between QSS and OEM.
  7. Interpretation. The divisions and headings in this Agreement have been included for convenience only and will not affect its construction or interpretation. Words importing the singular will include the plural and vice versa. Unless expressly stated otherwise: (i) the words "hereof", "herein", "hereto", "hereunder", "therein", "thereto" and similar expressions used in this Agreement mean and refer to the whole of this Agreement and not to any particular part, section, subsection or paragraph; (ii) "includes" means "includes without limitation", "including" means "including without limitation", "any" means "any and all" and "law" means "law, by-law, regulation, order, decision and rule"; and (iii) any reference herein by numerical or alphabetical designation to a part, section, subsection or paragraph, will refer to the part, section, subsection or paragraph bearing that designation in this Agreement. The terms and conditions of this Agreement will prevail over any inconsistent or additional terms or conditions of purchase orders or invoices.
  8. Promotion. Each party authorizes the other to indicate in its advertising, marketing and other promotional materials and undertakings that OEM uses the Software in the Target System. OEM will not represent the Software has performance, application or reliability characteristics that do not appear in the Documentation or in QSS' marketing materials.
  9. Preliminary Runtime Quotations. QSS issues preliminary runtime quotations which are not formal Runtime Quotations. Any products quoted on preliminary runtime quotations are subject to availability.

Part C1 - Voyager Supplement

C1.1 Definitions. In this Part:
  1. "Run Time" means software programs in executable binary form; and
  2. "Voyager Software" means the Software module identified in s. A1 (Definitions) by a description which includes the trademarks "Voyager" and/ or by QSS part number(s) 004624, 004684 , 004734, 005534, 5559, 007004, 007014, 7031, 007056, 007057, 007060, 010105 and / or 010126;
  3. "this Part" means this document entitled "Part C1 - Voyager Supplement" and such parts of this Agreement as may be required to interpret the provisions herein. In the event of a conflict between the terms of this Part and other terms of this Agreement, the terms of this Part will prevail.

C1.2 License. Subject to the terms and conditions of this Agreement, QSS hereby grants OEM a non-exclusive, non-transferable, worldwide license to copy and directly or indirectly distribute Run-Time copies of the Voyager Software bundled with other elements of the Software and incorporated into Target Systems for use solely in association with such Software and Target Systems pursuant to the terms of an End User License Agreement.

C1.3 Restrictions.

Except as expressly granted above, OEM obtains no right, title or interest in or to the Voyager Software, including any copyright, patent, trade-secret, trademark or other proprietary rights therein. OEM agrees not to decompile, reverse engineer or otherwise inspect the functionality or derive a source code version of the Voyager Software, or enhance, modify or prepare derivative works of the Voyager Software except as expressly provided in the Documentation. QSS and its licensors will retain all their respective rights, title and interest in the Voyager Software, including any updates thereof made available to OEM under this Agreement, and except for the rights and licenses granted to OEM herein, OEM will not take any action inconsistent with such title and ownership. OEM will not have any ownership interest in any element, segment or component of the Voyager Software incorporated into the Target System.

C1.4 Section C1.4 is intentionally blank.

C1.5 Marking.

OEM will not alter or delete any printed or on-screen copyright, trade secret or proprietary and/or legal notices contained in or on copies of the Voyager Software, and will ensure that: (i) it reproduces the copyright notices of the University of Illinois and Spyglass, Inc. on the "splash screen" or in the same location where OEM reproduces its own copyright notices; and (ii) it includes the following statements of identification and attribution in the Voyager Software by (1) inclusion on a "splash screen"; and/or (2) inclusion in an "about box"; and (3) in the associated documentation:

NCSA Mosaic was developed by the National Center for Supercomputing Applications at the University of Illinois at Urbana-Champaign. This version is being distributed under a license agreement with Spyglass, Inc. and QNX Software Systems Ltd.

OEM agrees to provide an example of such "splash screens", "about boxes" and other reproductions of all notices, copyrights, trademarks and logos prior to distribution of the Voyager Software for approval by QSS and its licensors the first time OEM reproduces such items and any time OEM substantially changes such items. No right is being granted hereunder for OEM to use trademarks of QSS, Spyglass, Inc. or their respective licensors.

C1.6 Restricted Rights.

If the end user or any Subcontractor, Distributor or Sub-licensee of any Target System is a department or agency of the United States Government, OEM will grant such agency only "restricted rights" or "limited rights" (as defined in the applicable Federal Acquisition Regulations) to the Voyager Software, and OEM will take all actions reasonably necessary to protect QSS' (and its licensors') rights and interest in the Voyager Software in accordance with such regulations and successor regulations including, but not limited to, the placement of appropriate legends in or on the Target System.

C1.7 Disclaimer of Warranties.

THE VOYAGER SOFTWARE IS BEING PROVIDED "AS IS" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. QSS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, ORAL OR WRITTEN, WITH RESPECT TO THE VOYAGER SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

C1.8 Limitations on Liability.

QSS' LIABILITY FOR DAMAGES TO OEM FOR ANY CAUSE WHATSOEVER RELATING TO THE VOYAGER SOFTWARE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, Will NOT EXCEED THE AGGREGATE LICENSE FEES PAID BY OEM TO QSS DURING THE PREVIOUS 12 MONTHS UNDER THE THIS AGREEMENT FOR THE VOYAGER SOFTWARE. IN NO EVENT Will QSS BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF THE VOYAGER SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE VOYAGER SOFTWARE. IN NO EVENT WILL QSS BE LIABLE TO END USERS, RESELLERS OR OTHER THIRD PARTIES FOR ANY DAMAGES WHATSOEVER. OEM WILL IMMEDIATELY INFORM QSS AS SOON AS OEM BECOMES AWARE OF ANY THREATENED OR ACTUAL LIABILITY CLAIM BY A THIRD PARTY RELATING TO THE VOYAGER SOFTWARE.

C1.9 Intellectual Property.

The provisions of section B8 (QSS Indemnity) shall only apply to those portions of the Voyager Software in which QSS owns the copyright.

C1.10 Term.

This Supplement will be effective as of the Effective Date and will continue indefinitely thereafter until termination of this Agreement, or termination of QSS' underlying license agreement with Spyglass, Inc. (the "Spyglass Agreement"), whichever occurs first.

C1.11 Consequence of Termination.

Any termination of the Spyglass Agreement will not affect OEM's right to distribute existing inventory of Target Systems for which OEM has paid QSS all applicable royalties. OEM agrees that after termination of the Spyglass Agreement, OEM will owe to Spyglass, Inc. all further obligations under this Agreement that pertain to the portions of the Voyager Software authored by Spyglass, Inc. or its licensors.

End of Part C1

Part C2 - Citrix Supplement

C2.1 Definitions. In this Part:
  1. "ICA Client Software" means the Software module identified in section A2 (Definitions) by a description which includes the trademarks "Citrix" and/ or "ICA" and/or by the QSS part number(s) 004686 or 007017, 7077, 5536 and / or 010114
  2. "this Part" means this document entitled "Part C2 - Citrix Supplement" and such parts of this Agreement as may be required to interpret the provisions herein. In the event of a conflict between the terms of this Part and other terms of this Agreement, the terms of this Part will prevail.
C2.2 License.

During the term of, and subject to the terms and conditions of, this Agreement, QSS hereby grants to OEM, and OEM accepts, the nonexclusive, nontransferable right to:

  1. Copy the object code versions of the ICA Client Software solely for the purpose of packaging and delivering the ICA Client Software for use in Target Systems; and
  2. Distribute, the object code version of the ICA Client Software to new or existing end-users operating in the Software operating system compatible environments for use in the Target System.
C2.3 Restrictions. The ICA Client Software is not designed, manufactured or intended for use in any environment in which the failure of the ICA Client Software could lead to death, personal injury, or severe physical or environmental damage, such as in the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct line support machines, or weapon systems or in the on-line control of equipment in any hazardous environment requiring fail-safe performance ("Ultrahazardous Activities"). QSS and its licensors specifically disclaim any express or implied warranty of fitness for Ultra Hazardous Activities. OEM represents and warrants to QSS that it will not use or resell the ICA Client Software for such purposes.

C2.4 Section C2.4 is intentionally blank.

C2.5 International Distribution.

OEM will not export or re-export the ICA Client Software or related technical data in whole or in part to any country, person, entity or end user to which such export would be a violation of any applicable export restriction. Restricted countries for the purposes of U.S. law and regulations currently include, but are not necessarily limited to, Cuba, Iran, Iraq, Libya, North Korea the Sudan and Syria. OEM will do all things necessary to comply with all applicable laws, rules and regulations concerning exports of the ICA Client Software and related technical data. In addition, OEM will not distribute the ICA Client Software or any related technical data to the People's Republic of China or Afghanistan.

C2.6 Government End-users.

The ICA Client Software and accompanying documentation are "commercial items," developed exclusively at private expense, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in the applicable acquisition regulations. If the ICA Client Software and associated documentation are licensed hereunder for distribution to Government end-users, such Software and Documentation must be licensed (i) only as a commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Part. If this Part fails to meet a Government end-users' minimum needs or is inconsistent with Federal Procurement law, OEM agrees to notify QSS. The following additional statement applies only to procurements governed by DFARS Subpart 227.4 (1988): Restricted Rights 3/4 Use, duplication and disclosure by the Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (1988).

C2.7 Testing.

OEM will exercise a level of quality assurance that is no less diligent with regard to media, replication and testing procedures, as that used by OEM for its own products, in connection with use and distribution of the Software in the Target System.

C2.8 Marking.

Copyright and Patent Notices. OEM will not alter or remove any copyright, trademark and/or patent notices in the ICA Client Software. OEM agrees to comply with the following copyright and patent notice requirements: on initial load screen - "© 1998 Citrix Systems, Inc."

C2.9 DISCLAIMER OF WARRANTIES. THE ICA CLIENT SOFTWARE IS BEING PROVIDED "AS IS" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. QSS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, ORAL OR WRITTEN, WITH RESPECT TO THE ICA CLIENT SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

C2.10 LIMITATIONS ON LIABILITY. QSS'S LIABILITY FOR DAMAGES TO OEM FOR ANY CAUSE WHATSOEVER RELATING TO THE ICA CLIENT SOFTWARE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, Will NOT EXCEED THE AGGREGATE LICENSE FEES PAID BY OEM TO QSS DURING THE PREVIOUS 12 MONTHS UNDER THE OEM AGREEMENT FOR THE ICA CLIENT SOFTWARE. IN NO EVENT Will QSS BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF THE ICA CLIENT SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE ICA CLIENT SOFTWARE. IN NO EVENT WILL QSS BE LIABLE TO END USERS, RESELLERS OR OTHER THIRD PARTIES FOR ANY DAMAGES WHATSOEVER. OEM WILL IMMEDIATELY INFORM QSS AS SOON AS OEM BECOMES AWARE OF ANY THREATENED OR ACTUAL LIABILITY CLAIM BY A THIRD PARTY RELATING TO THE ICA CLIENT SOFTWARE.

C2.11 Intellectual Property. The provisions of section B8 (QSS Indemnity) shall only apply to those portions of the ICA Client Software in which QSS owns the copyright.

C2.12 Term. This Supplement will be effective as of the Effective Date and will continue until expiration (January 26, 2006) or termination of QSS's underlying license rights from Citrix, whichever occurs first. This Supplement will be extended for any period that QSS negotiates with Citrix for continuation of the rights provided under this Agreement. Effective upon termination or expiry of this Supplement, all license rights granted herein will cease and OEM will cease to use all trademarks and trade names of Citrix. All end-user licenses properly granted by OEM will survive termination.

C2.13 Third Party Beneficiary. OEM acknowledges and agrees that Citrix is a third party beneficiary in respect of all terms and conditions of this Agreement, including but not limited to those of this Supplement, as applied to the ICA Client Software.

End of Part C2

Part C3 - RealNetworks Supplement

C3.1 Definitions. In this Part:
  1. "RN Software" means the Software module identified in section A2 (Definitions) by a description which includes the trademark Real or RealNetworks or RealPlayer and/or by the QSS part number(s) 4685, 4729, 5560 and/or 010115 (as superceded by subsequent updates / upgrades to related products);
  2. "this Part" or "this Supplement" means this document entitled "Part C3 - Real Networks Supplement" and such parts of this Agreement as may be required to interpret the provisions herein. In the event of a conflict between the terms of this Part and other terms of this Agreement, the terms of this Part will prevail;
  3. "End User" means a current or prospective customer to whom OEM offers to license Bundles for such customer's own use and not for resale or redistribution;
  4. "Bundle" means the RN Software together with all runtime modules necessary to run the RN Software;
  5. "RN" means RealNetworks, Inc. a corporation located at 2601 Elliott Avenue, Seattle, Washington 98121

C3.2 License.

  1. During the term of, and subject to the terms and conditions of, this Agreement, QSS hereby grants to OEM, and OEM accepts a non-transferable and non-exclusive license, to reproduce, market, sublicense and distribute the RN Software, solely for use in a Bundle, (1) to OEM's Distributors and Sublicensees subject to C3.2(b) below; and (2) to OEM's End Users, pursuant to OEM's end user license agreement containing at a minimum the terms specified section C3.4 below.
  2. Any permitted distribution agreements or sublicences (other than EULAs) entered into by OEM must contain provisions which are substantively equivalent to all provisions of this Part, other than C3.9 (Intellectual Property).

C3.3 Prohibitions

  1. OEM or its Distributors or Sublicensees will not:
    1. transfer the RN Software, except for temporary transfer in the event of computer malfunction;
    2. pass title to the RN Software to any party; or
    3. assign the RN Software, provided however that an OEM, its Distributors or Sublicensees may transfer the RN Software and assign the associated license agreement to another distribution channel member in the normal course of indirect product distribution.
  2. Reverse engineering, disassembly or decompilation of the RN Software is prohibited.

C3.4 Section C3.4 is intentionally blank

C3.5 Export OEM will comply fully with all relevant export laws and regulations of the United States to assure that the RN Software is not exported, directly or indirectly, in violation of United States law.

C3.6 Marking. OEM will not remove, obscure or deface any proprietary, trademark or copyright markings or confidentiality legends placed upon or contained within the RN Software or any related materials or documentation. In addition, OEM will not remove any attribution, logo and/or applicable Trademarks placed by QSS in any "about" box or "flash"/"splash" screen of a RN Software.
OEM will follow RealNetworks, Inc.'s policies regarding advertising and trademark usage when using any trademarks and/or logos belonging to RealNetworks, Inc., such use to be limited to marketing of the RealPlayer Software. The current policies are found at http://licensing.qnx.com/published/marking/RP71_00.html.

C3.7 DISCLAIMER OF WARRANTIES. THE RN SOFTWARE IS BEING PROVIDED "AS IS" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. QSS HEREBY DISCLAIMS FOR ITSELF AND ON BEHALF OF RN ALL WARRANTIES AND CONDITIONS OF ANY KIND, ORAL OR WRITTEN, WITH RESPECT TO THE RN SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

C3.8 LIMITATIONS ON LIABILITY<. RN DISCLAIMS ALL LIABILITY FOR DAMAGES TO OEM FOR ANY CAUSE WHATSOEVER RELATING TO THE RN SOFTWARE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION. IN NO EVENT SHALL RN BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, ARISING FROM THE USE OF THE RN SOFTWARE IN ANY FORM. IN NO EVENT WILL RN BE LIABLE TO END USERS, RESELLERS OR OTHER THIRD PARTIES FOR ANY DAMAGES WHATSOEVER.

C3.9 Intellectual Property. The provisions of section B8 (QSS Indemnity) shall only apply to those portions of the RN Software in which QSS owns the copyright.

C3.10 Term . This Supplement will be effective as of the Effective Date and will continue until expiration (August 19, 2002) or termination of QSS's underlying license rights from RN, whichever occurs first. This Supplement will be extended for any period that QSS negotiates with RN for continuation of the rights provided under this Agreement.

C3.11 Effect of Termination

  1. All EULAs properly granted by OEM will survive termination.
  2. If termination of this Supplement is due to a breach by OEM then effective upon termination or expiry of this Supplement, all license rights granted herein will cease;
  3. If QSS fails to secure an extension of the RN Agreement at the end of its term, then OEM will be entitled to continue exercising limited rights under this Supplement but only to continue to distribute the Bundle for Target Systems that have been developed at the time of termination of this Supplement. In no event may OEM continue to develop new products with the Bundle after such termination or expiration.

C3.12 Third Party Beneficiary. OEM agrees that RN is a third-party beneficiary to this Agreement to the extent that it contains provisions which relate to OEM's use of the RN Software. Such provisions are made expressly for the benefit of RN in addition to QSS.

End of Part C3

Part C4 - Macromedia Supplement

C4.1 Definitions. In this Part:
  1. "Macromedia Software" means the Software module identified in section A1 (Definitions) by a description which includes the identifier(s) "Macromedia" and / or "Macromedia Flash" and/or by the QSS part number(s) 0004741, 0005561, 010124, 010125, 010126, 010127 and /or 010105 (as superceded by subsequent updates / upgrades to related products);
  2. "this Part" means this document entitled "Part C4 - Macromedia Supplement" and such parts of this Agreement as may be required to interpret the provisions herein. In the event of a conflict between the terms of this Part and other terms of this Agreement, the terms of this Part will prevail; and
  3. "Proprietary Notice" means the following notice:

    Contains Macromedia® Flash™ Player technology by Macromedia, Inc., Copyright © 1995-2000 Macromedia, Inc. All rights reserved.
    Macromedia, Flash and Macromedia Flash are trademarks or registered trademarks of Macromedia, Inc. in the United States and internationally.

C4.2 Background. The Macromedia Software runs as a plug-in with the Voyager browser. The Voyager browser is provided to OEM with a start-up splash screen which displays the Macromedia Flash Enabled Logo (the "Trademark"). The GUI of the Voyager browser is designed to allow customization by OEM and such customization can include the removal of splash screens, etc.

C4.3 Marking.

  1. Except as expressly provided herein, OEM will not remove, obscure or deface any proprietary, trademark or copyright markings or confidentiality legends placed upon or contained within the Macromedia Software or any related materials or documentation.
  2. OEM will not remove any attribution relating to Macromedia Software and/or the Trademark placed by QSS in any "about" box in either the Macromedia Software or the Voyager browser.
  3. If OEM uses the Macromedia Software in an application which uses the Voyager software and which application:
    1. has an installation process with splash screens, billboards, or equivalents, OEM will display the Trademark during the initial installation, set-up, or equivalent of the application; and / or
    2. has a start-up process with splash screens, billboards, or equivalents, OEM will display the Trademark during the start-up process of the application.
  4. OEM will place the Proprietary Notice in the copyright area of (i) the on-line documentation regarding the Macromedia Software and/or Voyager browser, and (ii) any other document related to the Macromedia Software and/or Voyager browser that contains copyright information. OEM will include the Trademark in conjunction with the Proprietary Notice.
  5. The Trademark may be changed from time to time by QSS in its Software Updates. To the extent that OEM is entitled to and does distribute Updated Macromedia Software, OEM will ensure that the Trademark it displays in compliance with this section reflects the most current Trademark.

C4.4 DISCLAIMER OF WARRANTIES. THE MACROMEDIA SOFTWARE AND THE TRADEMARK ARE PROVIDED ON AN AS-IS BASIS, WITH ALL FAULTS. QSS MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE ARE NO WARRANTIES OF TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT.

C4.5 Intellectual Property. The provisions of section B8 (QSS Indemnity) shall only apply to those portions of the Macromedia Software in which QSS owns the copyright.

C4.6 Term . This Supplement will be effective as of the Effective Date and will continue until the expiration (June 12, 2008) or termination of QSS's underlying license rights from Macromedia, Inc., whichever occurs first. This Supplement will be extended for any period that QSS negotiates with Macromedia for continuation of the rights provided under this Agreement.

C4.7 Breach of Material Term. QSS has the right to terminate the license for the Macromedia Software upon OEM's breach of a material term which will include any breach of the marking provisions in section C4.3.

End of Part C4

Part C5 - Multimedia Supplement

C5.1 Definitions. In this Part:
  1. "Multimedia Software" means the Software module(s) identified in section A2 (Definitions) by a description which includes the identifier(s) "MPEG 2" and / or "DVD" and/or by the QSS part number(s) 5556, 010111 and/or 010113 (as superceded by subsequent updates / upgrades to related products);
  2. "this Part" means this document entitled "Part C5 - Multimedia Supplement" and such parts of this Agreement as may be required to interpret the provisions herein. In the event of a conflict between the terms of this Part and other terms of this Agreement, the terms of this Part will prevail.
C5.2 Intellectual Property. OEM UNDERSTANDS AND AGREES THAT QSS MAKES NO WARRANTY WHATSOEVER THAT ANY MANUFACTURE, USE, SALE, LEASE OR OTHER DISPOSAL OF MULTIMEDIA SOFTWARE WILL BE FREE FROM INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. IT IS EXPLICITLY UNDERSTOOD BY OEM THAT THIRD PARTIES CLAIM TO HAVE ISSUED OR PROSPECTIVE PATENTS PERTINENT TO THE MULTIMEDIA SOFTWARE, WHICH PATENTS ARE NOT LICENSED HEREUNDER. QSS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION THAT MIGHT ARISE FROM ANY ACTIVITIES RELATING TO THIS AGREEMENT.

C5.3 License Fees. If after the Effective Date QSS is required to take a patent or other license relating to the Multimedia Software then QSS may pass through to OEM any licensing fees associated with such a license. If OEM objects to paying such fees then either OEM may terminate the rights under this Agreement associated with the Multimedia Software.

End of Part C5