MOBILE DIGITAL MEDIA, INC.

SOFTWARE LICENSE AGREEMENT AND LIMITED WARRANTY

CAREFULLY READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) BEFORE USING THE SOFTWARE THAT IS PROVIDED WITH THIS AGREEMENT (THE “SOFTWARE”).  SUCH SOFTWARE MAY BE INCLUDED AS PART OF A PHYSICAL PRODUCT (INCLUDING AN EXPANSION CARD, COMPACT DISC, OR OTHER STORAGE MEDIA (THE “PRODUCT”)) OR DISTRIBUTED VIA ELECTRONIC SOFTWARE DISTRIBUTION (“ESD”) OR OVER-THE-AIR (“OTA”) TRANSMISSION, BUT IN ANY CASE THE SOFTWARE IS PROPRIETARY TO MOBILE DIGITAL MEDIA, INC. (“MDM”) OR ITS LICENSORS, USE OF WHICH IS LICENSED BY MDM TO YOU, THE ORIGINAL END USER, FOR YOUR USE ONLY AS SET FORTH BELOW.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU PURCHASED A PRODUCT CONTAINING THE SOFTWARE FROM A RETAIL VENDOR, YOU SHOULD PROMPTLY RETURN THE PRODUCT TO THE VENDOR FOR A REFUND OF THE PURCHASE PRICE IN ACCORDANCE WITH THE VENDOR'S REFUND POLICY.  IF YOU INTEND TO OBTAIN THE SOFTWARE VIA ESD OR OTA AND YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CONTINUE WITH THE ESD OR OTA PROCESS.  USING ANY PART OF THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. License.  Subject to the terms and conditions of this Agreement, MDM hereby grants you a limited, nonexclusive license to use, perform and display the Software in accordance with the applicable documentation.  You are not permitted to use the Software in any manner not expressly authorized by this Agreement.  Without limiting the foregoing, you may not: (a) reproduce, distribute, sublicense, use for service bureau purposes, sell, lease or otherwise transfer the Software to any third parties; (b) modify, alter, improve, “hack,” or create derivative works of the Software; or (c) reverse engineer, decompile, disassemble, reverse assemble, or otherwise attempt to derive the source code of the Software, unless specifically provided herein.  However, if you are a European Union (“EU”) resident, information necessary to achieve interoperability of the Software with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available to you from MDM upon your written request.  You acknowledge and agree that the Software is licensed to you, not sold.  MDM and its licensors retain exclusive ownership of all proprietary rights, including all patent, copyright, trade secret, trademark and other proprietary rights worldwide, in and to the Software (including any corrections, bug fixes, enhancements, updates or other modifications thereto).  There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved.  For each purchase you make, you may use one (1) copy of the Product or Software and only on one (1) handheld device at a time.  Without limiting the foregoing, in the event that MDM expressly authorizes you to reproduce the software for any reason, you must reproduce and include all copyright and other proprietary rights notices appearing on the Software on any copies that you make pursuant to MDM’s expressed authorization.
2. Third-Party Software.  You understand and agree that the Software may contain additional third-party software (“Third-Party Software”) the use of which is subject to separate license agreements and additional terms and conditions, which additional terms are included in the Product and/or its packaging.  You hereby agree to comply with all such additional terms and conditions in your use of the Third-Party Software.
3. WARRANTY
3.1 Limited Warranty.  MDM warrants to the original end user that new Products will be free from defects in workmanship and materials, under normal use, for one (1) year from the original purchase date, and that the Software will perform in substantial conformance with the applicable program specifications for a period of ninety (90) days from the date of original purchase.
3.2 Warranty Exclusions.  This warranty excludes: (a) physical damage to the surface of the Product, including cracks or scratches on the outside casing; (b) damage caused by misuse, neglect, improper installation or testing, unauthorized attempts to open, repair, or modify the Product or Software, or any other cause beyond the scope of the intended use for the Product; (c) damage caused by accident, fire, power changes, water, other hazards, or acts of God; or (d) use of the Product with any device or service, if such device or service causes the problem.  Any third party products, including Third-Party Software, included with the Products are not covered by this MDM warranty and MDM makes no representations or warranties on behalf of such third parties.  Any warranty on such products shall be provided directly by the applicable third party supplier or licensor.
3.3 Sole and Exclusive Remedies.  Should a covered defect occur and you notify MDM during the applicable warranty period, your sole and exclusive remedy shall be, at MDM’s sole option and expense, to repair or replace the Product or Software, or if MDM cannot reasonably repair or replace the Product or Software, MDM will refund the purchase price paid for the Product.  Replacement products or parts may be new or reconditioned or comparable versions of the defective item.  MDM warrants any replaced or repaired Product or Software for a period of ninety (90) days from shipment, or through the end of the original warranty, whichever is longer.
3.4 Obtaining Warranty Service.  You must contact an MDM technical support or customer service center within the applicable warranty period to obtain warranty service authorization.  To obtain the contact information for your area, refer to MDM’s web site at www.goMDM.com/support or any successor thereto.  Dated proof of original purchase will be required.  Products or parts shipped by you to MDM must be sent postage-paid and packaged appropriately for safe shipment.  MDM is not responsible for Products received without a warranty service authorization, and MDM may reject such Products.  Repaired or replacement Products will be shipped to you at MDM’s expense.  All Products (or parts) that are replaced become the property of MDM or its suppliers or licensors.  MDM and its suppliers or licensors shall not be responsible for your software, firmware, information or memory data contained in, stored on, or integrated with any Products returned to MDM for repair, whether under warranty or not.  The repair and replacement process for Products in locations outside of the United States will vary depending on your location.
3.5 Disclaimer.  THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PRODUCTS OR THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, CORRESPONDENCE WITH DESCRIPTION, ACCURACY OF INFORMATIONAL CONTENT, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ALL OF WHICH ARE EXPRESSLY DISCLAIMED.  WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT MDM DOES NOT WARRANT OR REPRESENT THAT THE PRODUCTS OR THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN A TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE MANNER, THAT DEFECTS IN THE PRODUCT OR SOFTWARE WILL BE CORRECTED, THAT ANY CONTENT OR INFORMATION CONTAINED IN THE SOFTWARE OR OTHERWISE ACCESSED THROUGH THE PRODUCT WILL BE ACCURATE, COMPLETE, RELIABLE OR ERROR-FREE, OR THAT THE SOFTWARE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  ALL WARRANTIES ARE DISCLAIMED ON BEHALF OF MDM’S SUPPLIERS.
3.6 Warning.  THE PRODUCT IS NOT A TOY.  IT MAY CONTAIN PARTS WHICH COULD BECOME A CHOKING HAZARD AND, THEREFORE, SHOULD BE KEPT AWAY FROM CHILDREN OR USED SOLELY WITH ADULT SUPERVISION.
4. Limitation of Liability.  NEITHER MDM NOR ITS SUPPLIERS SHALL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF INFORMATION OR DATA, OTHER FINANCIAL LOSS OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF (OR INABILITY TO USE) THIS PRODUCT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY, EVEN IF MDM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  MDM’S ENTIRE LIABILITY SHALL BE LIMITED TO REPLACEMENT, REPAIR OR REFUND OF THE PURCHASE PRICE PAID BY YOU FOR THE APPLICABLE PRODUCT, AT MDM’S OPTION.
5. Statutory Limitations.  Some countries, states, or provinces do not allow the exclusion or limitation of implied warranties or the limitation of incidental or consequential damages so the above limitations and exclusions may be limited in their application to you.  When implied warranties may not be excluded in their entirety, they will be limited to the duration of the applicable written warranty, and your sole and exclusive remedy for breach of such implied warranties shall be subject to the limitation of liability set forth in the preceding paragraph.  This warranty gives you specific legal rights; you may have other rights that may vary depending on local law.  Your statutory rights are not affected.
6. Governing Law.  This Agreement shall be governed by the laws of the State of California and by the laws of the United States, excluding the conflicts of laws principles.  You also consent to the exclusive jurisdiction and venue of the Superior Court of Santa Clara County for state claims and the Northern District of California for federal claims in all disputes arising out of or relating to the Product or the Software.  The Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties’ relationship.
7. Assignment.  You may transfer the Product, including the Software, to another party if such party accepts the terms and conditions of this Agreement.  If you transfer the Product, you must at the same time either transfer all copies of the Software as well as the supporting documentation to the same party, or destroy any materials not transferred.
8. Export Restrictions.  You agree and acknowledge that the Software may contain cryptographic functionality, the export of which is restricted under U.S. export control law.  You will comply with all applicable laws and regulations in your activities under this Agreement, including all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts §§ 730-774).  You expressly agree not to export or re-export the Software in violation of such laws or regulations, or without all required licenses and authorizations.
9. Government End Users.  The Software licensed under this Agreement is "commercial computer software" as the term is described in 48 C.F.R. 252.227-7014(a)(1).  If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors.  If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.
10. Term and Termination.  This Agreement commences on the date on which the Product or Software is purchased and shall remain in effect until terminated as set forth in this section.  You may terminate this Agreement at any time by destroying the Product and documentation together with all copies of the Software in any form.  This Agreement will terminate immediately if you fail to comply with any term or condition of this Agreement.  Upon such termination you agree to destroy the Product and documentation, together with any and all copies of the Software.
11. General Provisions.  The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.  Unless otherwise provided, the term “including” as used herein will mean “including without limitation.”  The waiver of any breach or default, or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.  This Agreement constitutes the complete and exclusive agreement between MDM and you with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements.  If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid, illegal, or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality, and enforceability of any remaining provisions shall not in any way be affected or impaired.  MDM’s suppliers and licensors are direct and intended third party beneficiaries of this Agreement.
