End User License Agreement for AMR Narrowband Implementation

READ BEFORE USING: CAREFULLY READ THE TERMS OF THIS AMR NARROWBAND IMPLEMENTATION LICENSE AGREEMENT AND APPENDICES, IF ANY ("LICENSE") BEFORE INSTALLING, COPYING OR USING THE IMPLEMENTATION, AS DEFINED IN THIS LICENSE. THIS LICENSE IS AN AGREEMENT BETWEEN YOU ("LICENSEE") AND CODECPRO INC. WITH PRINCIPAL OFFICES AT 2162, LAURIER E., MONTREAL (QUEBEC), CANADA, H2H 1C2 ("LICENSOR") (COLLECTIVELY "PARTIES"). BY INSTALLING, COPYING OR USING THE IMPLEMENTATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY OR USE THE IMPLEMENTATION.

1 Definitions

The following terms when used in this License shall have the following meaning:
"AS IS" means no modification of the bit allocation in the bitstream, frame size or sampling frequency of the Standard (to the exception of the expression "AS IS" under Section titled "Warranties and Disclaimer" which shall have the meaning under such context).
"Implementation" means the optimized software program [object code library (coder and decoder)], written specifically for the following target processor compliant with the Standard AS IS. The target processor is Intel® Pentium®
"3GPP" means Third Generation Partnership Project
"Licensee's Product(s)" means a device or apparatus incorporating a target processor or multiple target processors in which the Implementation is embedded.
"Standard" means the Adaptive Multi-Rate Narrowband Standard technical specifications of 3GPP: TS 26.071, General Description; TS 26.073, C-source code; TS 26.074, Test Sequences; TS 26.090, Transcoding Functions; TS 26.101, Frame Structure; TS 26.091, Error Concealment of lost frames; TS 26.092, Comfort Noise for AMR Speech Traffic Channels; TS 26.094, Voice Activity Detector for AMR Speech Traffic Channels.

2 Grants

2.1 Integration License

Subject to the provisions of this License, Licensor hereby grants a non-licensable and non-transferable license,
(i) to create interfaces ("Interface") with the Implementation as long as they do not constitute derivative works;
(ii) to bundle object code of the Implementation with the object code of the Interface (Bundled Product"); and
(iii) to reproduce the object code of the Implementation or of the Bundled Product for the sole purpose of incorporating such reproduction in Licensee's Products.

2.2 Distribution License

Subject to the provisions of this License, and provided that an appropriate license agreement is signed between Licensee and the rights holders related to the Standard and any other relevant standard, Licensor hereby grants and Licensee hereby accepts a personal, limited, world-wide, non-exclusive, non-licensable and non-transferable license to distribute directly or through its normal channels of distribution copies of the Implementation in object code form solely as part of Licensee's Products in such a way that the details of the interface between the Implementation and the Licensee's Product are not disclosed to the end-user and provided that such distribution is in compliance with Section 8.

2.3 Exclusions

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LICENSE, THIS LICENSE DOES NOT COVER INTELLECTUAL PROPERTY RIGHTS (INCLUDING, BUT NOT LIMITED TO, PATENTS, COPYRIGHT AND TRADE SECRETS) THAT HAVE BEEN DECLARED AND/OR MAY BE OWNED BY THIRD PARTIES, INCLUDING THIRD PARTIES IN CONNECTION WITH THE STANDARD, ANY SOFTWARE IMPLEMENTING THE STANDARD, AND/OR ANY OTHER STANDARD, NOR SHOULD THIS LICENSE BE INTERPRETED AS AN IMPLIED LICENSE RELATED TO THIRD PARTIES' INTELLECTUAL PROPERTY RIGHTS TO USE, MAKE OR SELL LICENSEE'S PRODUCTS UNTIL APPROPRIATE LICENSING ARRANGEMENTS HAVE BEEN FINALIZED WITH SUCH THIRD PARTIES.

3 Restricted Rights

Licensee shall not modify, remove or replace any copyright notice or trademarks of Licensor and/or its suppliers included in or placed upon the Implementation or any part thereof, or in the documentation. Licensee shall not disassemble, decompile, reverse-engineer or otherwise attempt to derive the source code from the Implementation.

4 Ownership

Licensor and its suppliers own and shall retain all right, title and interest in and to the Implementation, Confidential Information, improvement, modification, derivative works, in whole or in part, and in any form, and in all copies thereof ("Proprietary Information") as well as all intellectual property rights related thereto.

5 Confidentiality

Licensee expressly undertakes to retain in confidence all information and know-how supplied to Licensee by Licensor, including, but not limited to, technical and commercial information in form of oral disclosure, computer program and all other information that by the nature of the information or by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information").

6 Warranties and Disclaimer

FOR THE PURPOSE OF THIS SECTION, THE EXPRESSION "IMPLEMENTATION" SHALL INCLUDE CONFIDENTIAL INFORMATION AND "LICENSOR" SHALL INCLUDE ITS SUPPLIERS. THE IMPLEMENTATION IS PROVIDED AND ACCEPTED STRICTLY "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY AGAINST LATENT DEFECTS. LICENSOR DOES NOT WARRANT THAT THE IMPLEMENTATION IS EXEMPT FROM ERRORS, THAT ALL ERRORS MAY BE DETECTED OR CORRECTED, OR THE USE OF THE IMPLEMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. LICENSOR GIVES NO WARRANTY THAT THE IMPLEMENTATION WILL OPERATE WITH LICENSEE'S PRODUCTS OR WILL MEET THE REQUIREMENTS OF LICENSEE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THIS LICENSE OR USE OF, OR INABILITY TO USE THE IMPLEMENTATION, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE OR INTERRUPTION OF BUSINESS EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SAME. THE TOTAL LIABILITY OF LICENSOR FOR ANY CLAIM OR DAMAGES ARISING FROM THE USE OF THE IMPLEMENTATION, OR OTHERWISE RELATED TO THIS LICENSE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE CONSIDERATION PAID BY LICENSEE TO LICENSOR UNDER THIS LICENSE. NOTHING CONTAINED IN THIS LICENSE SHALL BE CONSTRUED AS (I) A WARRANTY OR REPRESENTATION THAT ANY USE OF IMPLEMENTATION WILL BE FREE FROM INFRINGEMENT OF PATENTS, COPYRIGHT OR TRADEMARKS; (II) AN AGREEMENT TO BRING OR PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR INFRINGEMENT OF ANY OF THE RIGHTS LICENSED HEREBY, OR CONFERRING ANY RIGHTS TO BRING OR PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR INFRINGEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE IMPLEMENTATION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THE USE THEREOF.

7 Harmless Clause

Licensee agrees to indemnify, defend and hold Licensor, its suppliers, directors, officers, shareholders, employees and agents harmless from any claim, lawsuit, legal proceeding, settlement or judgment (including without limitation Licensor and its suppliers' reasonable attorneys' and expert witnesses' fees and costs) arising out of or in connection with the possession, use or distribution of the Implementation as part of Licensee's Products.

8 End-User License Agreement

Licensee will distribute the Implementation in accordance with the terms of this License and with an end-user license agreement consistent with, and no less protective of Licensor's rights than, this License. The disclaimer of warranty, limitation of liability terms, and remedies applicable to the Implementation in such agreement shall inure to the benefit of Licensor and its suppliers.

9 Distribution to the U.S. Government

Licensee undertakes not to distribute the Implementation and to prevent such distribution to the government of the United States of America, its agencies or instrumentalities except in accordance with a written license containing the following text:
"The program and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 of subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227.19, as applicable. Contractor/Manufacturer isor other text as may be required by law, which text shall have been approved by Licensor in writing.

10 Term

This License shall come into force upon the earlier of the installation, copying or use of the Implementation by Licensee and shall continue unless terminated pursuant to Section 11 hereof.

11 Termination

Licensor may, at its sole discretion, suspend the performance and/or terminate this License without notice and without thereby limiting its rights, recourses or claims provided for under this License, at law or in equity, against Licensee and without incurring any liability in the following circumstances:
(i) for any material breach of this License by Licensee (without limiting the foregoing, the distribution of the Implementation contrary to the requirements of Section 2.2 shall be deemed a material breach), or
(ii) if Licensee's normal business operations are disrupted or discontinued for reason of insolvency, bankruptcy, receivership or business termination. In any action or suit to enforce any right or remedy under this License, or to interpret any provision of this License, Licensor will be entitled to recover its reasonable, documented costs, including attorney's fees and fees of other litigation-related professionals, such as expert witnesses and accountants.

12 Effect of Termination

Upon the expiration or termination of this License, all grants pursuant to this License shall be terminated and Licensee shall stop and shall cause to be stopped any use of the Implementation and return to Licensor said Implementation and Confidential Information or shall destroy or cause to be destroyed the foregoing. Licensee agrees to provide forthwith to Licensor a statement executed (verified if so requested by Licensor) by a duly authorised officer of Licensee attesting that all such material has been returned or destroyed. Unless this License is terminated by Licensor for Licensee's material breach of Section 2.1, 2.2, 2.3, 3, 4, 5, 8 or 9, any valid distribution of the Implementation to end-users in compliance with this License prior to the effective date of termination by Licensor or expiration shall, subject to the restrictions of this License, not be affected and shall remain in force and effect. Licensor may revoke the Licensee's foregoing continuing rights should Licensee breach any of the provisions of Section 2.1, 2.2, 2.3, 3, 4, 5, 8 or 9. Sections 2.3, 3, 4, 5, 6, 7, 8, 9, 12 and 15 hereof shall survive the expiration or termination of this License.

13 Assignment

This License, and any rights and/or obligations hereunder shall not be assigned or delegated by Licensee without the prior written approval of Licensor. Any attempted assignment, delegation, impermissible license, transfer or other disposal without such consent shall be null and void. Except as otherwise provided, this License will be binding upon and inure to the benefit of the parties' permitted successors and lawful assigns.

14 Technical Support

Licensor shall not be responsible for providing any technical support, bug-fixes, error corrections, maintenance or field services to Licensee and end-user.

15 General

(i) No variation or modification of this License nor waiver of any of the terms and provisions hereof shall be deemed valid unless in writing signed by the Parties;
(ii) if any part of a provision shall be held by a court to be illegal, invalid or unenforceable, the remaining part of any provision shall remain in full force and effect and the illegal, invalid or unenforceable part of any provision shall be replaced by part of a provision carrying to the extent legally permissible;
(iii) unless the context otherwise requires or unless it is specified otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders;
(iv) this License sets forth the entire understanding between the Parties with respect to the subject matter herein, and supersedes all prior written agreements and discussions concerning the subject matter of this License;
(v) this License is governed, interpreted and defined by and under the laws of the Province of Quebec and the Laws of Canada applicable therein, without regard to the conflicts of laws principles. Any litigation arising under this License will be brought in the courts of the district of Montreal, Province of Quebec;
(vi) Licensor is not responsible for failure to fulfill its obligations due to causes beyond its control;
(vii) the Parties hereto have requested that this License be drafted in English. Les Parties aux présentes ont exigé que ce contrat soit rédigé en langue anglaise.