Zi Corporation QIX Terms & Conditions

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Zi Corporation QIX Terms & Conditions

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TERMS AND CONDITIONS OF USE

QIX SOFTWARE

READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE QIX SOFTWARE ("SOFTWARE"). BY CLICKING ON THE "I AGREE" BUTTON, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE AND ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, THEN DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE.

This Software End User License Agreement ("License") is between you as end-user, ("You"), and Zi Corporation and/or its affiliates ("Zi"). This License authorizes You to use Zi?s Qix software in accordance with the terms and conditions of this License.

This License is an agreement defining Your rights as the end-user, it is not an agreement for sale. Zi owns the copy of the Software provided hereunder, including without limitation, all underlying proprietary rights, trade secrets and confidential information contained therein. Your License is conditional upon compliance with the terms of this License and the payment of any license fees due to Zi, failure of which shall constitute a breach of this License entitling Zi to terminate Your License to use the Software.

1. SOFTWARE LICENSE. Subject to the terms and conditions herein, Zi grants You a personal, revocable, non-exclusive, non-transferable license to install and use one copy of the Software on a single cellphone product. You may not use or allow use of the Software other than for the Purpose, or make a second copy or reproduction of the Software whatsoever. This License does not imply any rights to future upgrades or updates of the Software. However, if Zi does provide You with any upgrades or updates of the Software, such upgrades or updates shall be subject to the terms and conditions of this License or any agreement which accompanies such upgrades or updates, and may be subject to additional payments. You may not print, copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part.

2. INTELLECTUAL PROPERTY. You do not acquire under this License any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright or rights in any confidential information or trade-secrets, in or relating to the Software. Any grants not expressly granted herein are reserved. The Software is only licensed to You as expressly set out herein, and it and all associated documentation or materials are protected by Canadian, U.S. and international copyright and patent laws and international treaty provisions.

3. RESTRICTIONS. You acknowledge and agree that the Software was developed at considerable time and expense by Zi and is confidential to and contains trade secrets of Zi. You do not have the right to obtain or use any source code for the Software, and may not translate, reverse engineer, decompile or disassemble, or otherwise attempt to derive the source code of the Software and agree not to authorize, allow or enable any other person to do so.

4. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND BY ZI. ZI DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SOFTWARE, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABLE QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED. ZI SHALL HAVE NO LIABILITY TO YOU OF ANY KIND WITH RESPECT TO ANY SERVICE PROVIDED BY ANY THIRD PARTY THROUGH ZI OR IN CONJUNCTION WITH THE SOFTWARE.

5. LIMITATION OF LIABILITY. The only type of damages that can be recovered against Zi arising from or related to this License including without limitation in relation to the provision, use, performance or non-performance of the Software or any portion thereof, shall be Your direct damages, if any, and: (i) in no event shall the aggregate liability of Zi exceed the amount paid by You for the Software that gave rise to the claim; and (ii) Zi shall only be liable for damages incurred during the period of such failure, delay or non-performance of the Software. ZI SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SOFTWARE. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ZI BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE SOFTWARE, DOWNTIME COSTS, LOSS OF USE OF THE SOFTWARE, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY SOFTWARE, EVEN IF ZI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. The limited warranties set out in this License give You specific legal rights. You may also have other rights that vary by state or province. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions.

6. INDEMNITY. You shall defend, indemnify and hold harmless Zi and its suppliers, successors, affiliates, agents and assigns (each a "Zi Indemnified Party") from and against any claims, damages, losses or expenses (including legal fees and costs) incurred by a Zi Indemnified Party in connection with all claims, suits, judgments and causes of action: (i) for infringement of patents or other intellectual property or proprietary rights arising from combining with, or using any device, system or service in connection with the Software or any portion thereof; (ii) for damages arising from Your breach of Sections 1, 2 or 3; (iii) for libel, slander, defamation or infringement of copyright or other intellectual property or proprietary right with respect to material transmitted by You using the Software or the Nokia product; or (iv) for claims made by third persons against Zi arising from or related to Your use of the Software (other than that arise solely from the use of the Software strictly in accordance with its instructions for such use as provided by Zi). No remedy herein conferred upon Zi is intended to be exclusive and such remedies shall be cumulative. In the event of the termination of this License pursuant to Section 8, You shall pay to Zi all legal fees, collection fees, and related expenses, expended or incurred by Zi in the enforcement of any right hereunder.

7. TERM. This License shall be effective upon Your agreement to be bound by the terms (as described above) and shall end upon termination of this License in accordance with the provisions set out herein. Zi reserves the right to terminate this License in the event that airtime, internet or other similar services required by Zi to provide the Software and related services to You become unavailable to You through no fault of Zi, without liability to You, by providing notice of termination. Upon termination of this License, You will cease all use of the Software and destroy and/or permanently delete all copies of the Software in Your possession.

8. TERMINATION FOR DEFAULT. In addition to all other rights and remedies provided by this License or by law, Zi may terminate this License by providing notice of termination in the event of Your breach of any provision of this License. In addition, Zi may terminate this License without any liability whatsoever to You if Zi is prevented from providing access to the Software by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or if a notice from a government agency or department indicates either Zi or the third party service provider is not permitted to provide access to the Software. Nothing herein shall be construed to require Zi to seek a waiver of any law, rule, regulation or restriction, or seek judicial review or appeal of any court order. Zi shall not have any liability to You arising from or related to the termination of this License in accordance with this Section.

9. GENERAL.

(a) Personal Information. By submitting personal information to Zi pursuant to this License, including Your name, address and telephone number, You consent to the collection, processing, transmission and disclosure of such information by Zi to the third party suppliers and telephone carriers. Any information that You provide to Zi may be used or disclosed by Zi in accordance with the Qix Privacy Policy, which may be viewed at http://www.zicorp.com/privacy. Zi reserves the right to modify its privacy policies from time to time in its discretion. If information is disclosed to a third party service provider to facilitate the provision of the Software to You, the third party service provider?s privacy policy will be applicable.

(b) Force Majeure. Notwithstanding any other provision of this License, neither party shall be deemed in default of this License for failure to fulfill its obligations when due to causes beyond its reasonable control (including without limitation, if a third party service provider ceases to provide airtime, internet or other similar services to Zi at all or on commercially reasonable terms). This provision shall not be construed as excusing non-performance of any obligation by either party to make payment to the other party under this License.

(c) Waiver, Survival and Severability. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default. The terms, conditions and warranties contained in this License that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of this License. If a provision of this License is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire License, but rather the entire License shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of each party shall be construed and enforced accordingly.

(d) Governing Law and Dispute Resolution. This License is to be construed under the laws of the Province of Alberta, excluding any body of law governing conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this License. Any disagreement or dispute arising out of or relating to this License which the parties are unable to resolve after good faith negotiations within thirty (30) days of the dispute arising shall be settled by final and binding arbitration to be conducted in Alberta, Canada in accordance with the Commercial Rules of the American Arbitration Association, to the exclusion of the Courts. Each of the parties shall appoint one arbitrator and the two arbitrators shall jointly appoint a third arbitrator. No dispute between the parties, or involving any person but You, may be joined or combined together without the prior written consent of Zi, and You agree to waive any right You may have to commence or participate in any class action against Zi relating to such dispute. You also agree to opt out of any class proceedings against us. Judgment upon the award rendered by the three arbitrators may be entered in any Court having jurisdiction. Notwithstanding the foregoing, Zi has the right to institute legal or equitable proceedings in a Court for claims regarding: (i) amounts owed by You to Zi in connection with Your license of the Software; and (ii) Your violation or threatened violation of Sections 1, 2 or 3 of this License. The parties specifically agree that no claim or dispute shall be resolved by jury trial.

(e) Assignment. Zi may assign this License without notice to You. You shall not assign this License without the prior written consent of Zi (such consent may be withheld at Zi?s discretion).

(f) Notices. All notices or other communications under this License shall be deemed to have been duly given when made in writing and delivered in person, by courier or deposited in the mail, return receipt requested and addressed to You at the billing address supplied to Zi or the third party service provider by You, or addressed to Zi at Suite 2100, 840 ? 7th Avenue S.W., Calgary, Alberta, T2P 3G2, Canada. In addition to the foregoing, Zi may, at its option, give You any notice under this License by email. Notice to You by email shall be deemed to have been duly given when transmitted to an email address furnished by You to Zi.

(g) Entire Agreement. This License constitutes the entire agreement between the parties respecting the Software and there are no provisions, representations or collateral agreements between the parties other than as set out in this License. Zi reserves the right to make changes to this License by providing You with reasonable notice of the change by either email (as specified in Section 9(f) above) or by posting notice of the change at http://www.zicorp.com. If You continue to use the Software more than thirty (30) days after notice of the change has been given, You shall be deemed to have accepted this change. Notwithstanding the above, Zi may update this License at any time without notice if the update is non-significant.

(h) Language. It is the express will of the parties that this License and all related documents be drawn up in English. C?est la volonté expresse des parties que la présente convention ainsi que les documents qui s?y rattachent soient rédigées en anglais.