This is a legally binding agreement (“Agreement”) by and between Thundercomm Technology Co., Ltd. (“Thundercomm”) and the person or legal entity you represent (“You” or “Your”).
ATTENTION: THE DEVELOPMENT PLATFORM SOFTWARE PROVIDED UNDER THIS AGREEMENT IS LICENSED TO YOU AND NOT SOLD. ANY OPEN SOURCE SOFTWARE THAT IS PART OF THE DEVELOPMENT PLATFORM SOFTWARE IS BEING DISTRIBUTED TO YOU BY THUNDERCOMM, AND SUBJECT TO THE APPLICABLE OPEN SOURCE LICENSE TERMS, THE OPEN SOURCE SOFTWARE IS BEING LICENSED TO YOU, AND NOT SOLD, BY THE APPLICABLE PROJECT OR DEVELOPER THAT CREATED SUCH OPEN SOURCE SOFTWARE. THE LICENSE PROVISIONS OF THIS AGREEMENT DEFINE WHAT YOU MAY DO WITH THE DEVELOPMENT PLATFORM SOFTWARE. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE DEVELOPMENT PLATFORM SOFTWARE AND ANY SUPPORT OR SERVICE(S) THAT THUNDERCOMM MAY PROVIDE TO YOU IN RESPECT TO THE DEVELOPMENT PLATFORM SOFTWARE.
IMPORTANT: PLEASE CAREFULLY READ THIS AGREEMENT, WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE DEVELOPMENT PLATFORM SOFTWARE. BY CLICKING ON THE “YES” OR “I ACCEPT” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK ON THE “NO” OR “I DO NOT ACCEPT” BUTTON AND PLEASE DO NOT COMPLETE THE DOWNLOAD AND INSTALLATION OF THE DEVELOPMENT PLATFORM SOFTWARE. THUNDERCOMM RESERVES THE RIGHT TO REJECT ANY REQUEST FOR ACCESS TO THE DEVELOPMENT PLATFORM SOFTWARE. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
For the purposes of this Agreement:
“Affiliate” means, with respect to You, Thundercomm or a Licensor (as defined below), as the case may be, any corporation or other entity that, at any time, directly or indirectly, Controls, is Controlled by or is under common Control with You, Thundercomm or a Licensor, as the case may be (but only as long as such Control exists). For the purpose of this definition, the term “Control” means (i) the beneficial ownership (whether direct or indirect) of more than fifty percent (50%) of the voting power of an entity or (ii) in the case of an entity that does not have outstanding voting shares or securities, the majority (i.e., more than fifty percent (50%)) of the equity interests in such entity that is now or hereafter owned or controlled by another entity, either directly or indirectly.
“Development Platform Hardware” means a hardware development platform, which is either (i) sold by Thundercomm and based on one or more Ancillary Components by Qualcomm Technologies, Inc. (“QTI”), or (ii) purchased from a QTI-approved purchaser or distributor based on one or more Ancillary Components.
“Development Platform Software” means collectively, or individually, as applicable: any software or firmware of Thundercomm or its Licensors, in object code and/or source code form, that is licensed by Thundercomm to You pursuant to this Agreement solely for use on Development Platform Hardware.
“Documentation” means any and all written or electronic documentation, including user manuals, reference materials, and/or installation manuals that Thundercomm generally makes available to licensees of the Development Platform Software.
“Intellectual Property Rights” or “IPR” means patents (including patent applications, reissues, divisions, continuations and extensions thereof, all sometimes individually and/or collectively referred to herein as “Patent(s)”), utility models, copyrights, trade secrets, mask work rights, and any other form of intellectual property right protection, excluding trademarks and service marks, afforded under the laws of the United States or any other jurisdiction or bi-lateral or multi-lateral international treaty regime.
“Licensor(s)” means any third party that licenses software to Thundercomm for use in the Development Platform Software.
“Open Source Software” means any software licensed under Open Source License Terms.
“Open Source License Terms” means the licensing and/or distribution models commonly known as “open source software” or “free software” or any other licensing and/or distribution models pursuant to which software is made generally available to the public in source code form under terms that permit modification and redistribution of such software. By way of example only and without limitation, Open Source License Terms include any versions of the following agreements, licenses or distribution models: (1) the GNU General Public License (GPL); (2) Lesser/Library GPL (LGPL); (3) the Common Development and Distribution License (CDDL); (4) the Artistic License (including without limitation PERL); (5) the Netscape Public License; (6) the Sun Community Source License (SCSL) or the Sun Industry Standards License (SISL); (7) the Apache License; (8) the Common Public License; (9) the Affero GPL (AGPL); (10) the Berkeley Software Distribution (BSD); (11) the Mozilla Public License (MPL); and (12) any other licenses that are defined as OSI (Open Source Initiative) licenses as listed on the opensource.org website.
“Reciprocal Open Source Software” means Open Source Software licensed under Reciprocal Open Source License Terms.
“Reciprocal Open Source License Terms” means terms in any license or agreement for software which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed or combined with such software (a “Work”), any of the following: (a) the making available of source code, object code, or design information regarding the Work; (b) the granting of permission for creating derivative works regarding the Work; or (c) the granting of a royalty-free license to anyone under Intellectual Property Rights in respect to the Work, including, without limitation the GPL and LGPL.
1. Scope. These terms and conditions apply to the Development Platform Software that You receive from Thundercomm which is being licensed, not sold, to You. Any other terms or conditions stated by You that are different from, or in addition to, these terms and conditions shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Agreement. Thundercomm expressly rejects additional or different terms.
2. Software License. Subject to the terms and conditions of this Agreement (including, without limitation those terms, conditions and restrictions set forth in Sections 3 (Restrictions), 4 (Ownership) and 5 (Open Source Software) below) and payment of the applicable fees, if any, Thundercomm hereby grants to You (a) a non-exclusive limited, copyright license to use the Development Platform Software solely in conjunction with the Development Platform Hardware; provided, however, that the Development Platform Software is to be used only in connection with such products that you own or control for the duration of the useful life of the associated Development Platform Hardware (unless this Agreement is terminated sooner as provided in this Agreement), and (b) a non-exclusive, limited, copyright license to use the Documentation solely for the duration of the useful life of the associated Development Platform Hardware (unless this Agreement is terminated sooner as provided in this Agreement). Neither this Agreement, nor any act by Thundercomm or its Licensors or any of their respective Affiliates pursuant to this Agreement or relating to the Development Platform Software shall provide to You any license or any other rights whatsoever under any Intellectual Property Rights of Thundercomm or its Licensors or any of their respective Affiliates, except for the copyright rights expressly set forth in this Section 2. You understand and agree that: (i) neither this Agreement, nor the delivery of the Development Platform Software alone or when used in conjunction with the Development Platform Hardware, grants any right to practice, or any other right at all with respect to, any Patent of Thundercomm and its Licensors or any of their respective Affiliates; and (ii) a separate license agreement from Thundercomm and/or its Licensors, as the case may be, is needed to use or practice any Patent of Thundercomm or its Licensors or any of their respective Affiliates. You agree not to contend in any context that, as a result of the provision or use of the Development Platform Software alone or in conjunction with the Development Platform Hardware, either Thundercomm or its Licensors or any of their respective Affiliates has any obligation to extend, or You or any other party has obtained any right to, any license, whether express or implied, with respect to any Patent of Thundercomm or its Licensors or any of their respective Affiliates for any purpose. Neither this Agreement nor the delivery of the Development Platform Software alone or when used in conjunction with the Development Platform Hardware, modifies or abrogates Your obligations under any other agreement between You and Thundercomm or its Licensors or any of their respective Affiliates.
3. Restrictions. You agree not to, and will not encourage others to: (i) alter, modify, translate, or adapt any Development Platform Software or create any derivative works based thereon except in the case of any Open Source Software whereby the applicable Open Source License Terms shall apply; (ii) decompile, reverse engineer or disassemble any Development Platform Software or otherwise attempt to learn the source code, structure or algorithms underlying any of the Development Platform Software which may be provided in object or source code form; (iii) copy any Development Platform Software except as expressly permitted in this Agreement; (iv) assign, sublicense, distribute or otherwise transfer or commercially exploit any Development Platform Software in whole or in part; (v) use the Development Platform Software except as expressly permitted in this Agreement; (vi) disclose any Development Platform Software to any third party; or (vii) otherwise make the Development Platform Software available for value. In addition, You are not permitted to use the Development Platform Software in any device that (a) is capable, under any circumstance (including, without limitation, by software or firmware modifications), of initiating or receiving any CDMA or OFDMA based wireless wide area network communications including but not limited to such networks implementing IS-95, cdmaOne, cdma2000, EV-DO, W-CDMA, UMTS, HSPA, TD-SCDMA, LTE, WiMax and any updates or revisions thereto, or (b) implements wireless broadcast functionality in accordance with any wireless broadcast specifications ratified or adopted as a standard by any nationally or internationally recognized standards organization for development of or use in any wireless network. Failure to meet or maintain the requirements set forth in this Section 3 shall be a material breach of this Agreement and result in the immediate termination of this Agreement pursuant to Section 10 (Termination).
With regard to any related Documentation provided to You, You may reproduce a reasonable number of copies of such Documentation, and use such Documentation as permitted above in Section 2 (Software License) of this Agreement. Distribution of the Documentation is prohibited without the express written permission of Thundercomm, which it can withhold, condition or delay in its sole discretion.
4. Ownership. You acknowledge and agree that Thundercomm and its Licensors shall retain all right, title, and interest in and to the Development Platform Software and any improvements thereof, including without limitation all copyrights, patent rights and trademark rights and all other Intellectual Property Rights therein, and You shall not remove any copyright notices or other legends from the Development Platform Software or any accompanying Documentation. Except for the limited copyright right granted to You under Section 2 (Software License) with respect to the use of the Development Platform Software, You further acknowledge and agree that Thundercomm has no right to sublicense or otherwise grant any rights under any other Intellectual Property Rights of its Licensors or Affiliates of such Licensors, including, without limitation, any Patents of its Licensors or Affiliates of such Licensors.
5. Open Source Software. The Development Platform Software may contain Open Source Software. The terms and conditions governing Your use of such Open Source Software shall be in accordance with the Open Source License Terms associated with such Open Source Software. You shall not make the portions of the Development Platform Software that are proprietary to Thundercomm or its Licensors available pursuant to any Open Source License Terms. You shall not use, combine, modify, distribute, make the Development Platform Software a derivative work of or otherwise exploit the Development Platform Software in connection with any Reciprocal Open Source Software in any manner that would cause the Development Platform Software to become subject to any Reciprocal Open Source License Terms, and You shall restrict each of Your subcontractors and customers in the same manner.
6. Feedback. Thundercomm may from time to time receive suggestions, feedback or other information from You concerning the Development Platform Software and/or Documentation. Any suggestions, feedback or other disclosures made by You are and shall be entirely voluntary on Your part. Notwithstanding any other term in this Agreement, Thundercomm and its Licensors shall be free to use Your suggestions, feedback or other information in the further development of the Development Platform Software and/or Documentation, without obligation of any kind to You. You agree that all inventions, product improvements, and modifications to the Development Platform Software and Documentation conceived of or made by Thundercomm and/or its Licensors that are based, either in whole or in part, on Your ideas, feedback, suggestions, or recommended improvements are the exclusive property of Thundercomm and/or its Licensors, and all right, title and interest in and to any such inventions, product improvements, and modifications will vest solely in Thundercomm and/or its Licensors, as the case may be.
7. Technical Support and Updates. Notwithstanding anything to the contrary hereunder, You acknowledge and agree that Thundercomm and its Licensors (i) are under no obligation to provide any form of technical support for the Development Platform Software; and (ii) have no obligation to provide any updates to the Development Platform Software under this Agreement. If Thundercomm chooses to provide any form of support or information relating to the Development Platform Software, such support and information shall be deemed confidential and proprietary to Thundercomm and/or its Licensors, as the case may be, and shall be protected in accordance with Section 8 (Confidentiality).
8. Confidentiality. The Development Platform Software, Documentation and all related information provided hereunder are confidential and proprietary to Thundercomm and/or its Licensors. You agree that You will only use the Development Platform Software, Documentation and all related information in accordance with the terms set forth in this Agreement. Unauthorized use or disclosure of the Development Platform Software, Documentation and/or all related information would cause irreparable harm and significant injury to Thundercomm and/or its Licensors that would be difficult to ascertain or quantify; accordingly You agree that Thundercomm and/or its Licensors shall have the right to obtain injunctive or other equitable relief to enforce the terms of this Agreement without limiting any other rights or remedies.
9. Term. This Agreement shall commence upon the earlier of the date that You first download or use the Development Platform Software and the date that You accept this Agreement, and shall continue until terminated in accordance with Section 10 (Termination).
10. Termination. This Agreement shall terminate immediately, without notice, if You fail to comply with any term or condition of this Agreement. If either party files a petition in bankruptcy or is adjudicated a bankrupt, or if a petition in bankruptcy is filed against either party and such petition is not discharged within sixty (60) days of such filing, or if either party becomes insolvent, or makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy law, or if either party discontinues its business or if a receiver is appointed for it or its business, this Agreement shall automatically terminate without any notice whatsoever being necessary. In addition, Thundercomm may terminate this Agreement at any time upon notice to You or by posting notice on Thundercomm’s website. Termination of this Agreement shall be without prejudice to any other remedy which may be available to Thundercomm due to default of this Agreement. Upon termination of this Agreement for any reason, all licenses granted by Thundercomm to You under this Agreement shall terminate, and You shall immediately, at Thundercomm's option, either return or destroy (and certify to the same) the Development Platform Software and Documentation, including all confidential information of Thundercomm and its Licensors. Any termination of this Agreement shall not prejudice Thundercomm's right to recover any sums due or accrued at the time of such termination and shall not prejudice any cause of action or claim accrued or to accrue on account of any breach or default. The parties' rights and obligations which by their sense and context are intended to survive any termination or expiration of this Agreement shall so survive, including but not limited to, Section 3 (Restrictions). Section 4 (Ownership), Section 6 (Feedback), Section 8 (Confidentiality), Section 10 (Termination), Section 11 (Disclaimer of Warranty), Section 12 (Limitation of Liability), Section 13 (Indemnification), Section 14 (Covenant Not to Assert), Section 15 (Government Compliance), Section 16 (U.S. Government End Users), Section 17 (Third Party Beneficiary) and Section 19 (Miscellaneous).
11. Disclaimer of Warranty. THE DEVELOPMENT PLATFORM SOFTWARE AND DOCUMENTATION ARE PROVIDED TO YOU “AS IS.” THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS REGARDING THE DEVELOPMENT PLATFORM SOFTWARE AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES DO NOT WARRANT THAT THE OPERATION OF THE DEVELOPMENT PLATFORM SOFTWARE AND DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED IN THOSE JURISDICTIONS.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THUNDERCOMM, ITS LICENSORS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE DEVELOPMENT PLATFORM SOFTWARE OR DOCUMENTATION, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR TORT, NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), EVEN IF THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT, TORT, NEGLIGENCE OR ANYTHING ELSE), THE ENTIRE LIABILITY (IN THE AGGREGATE) OF THUNDERCOMM, ITS LICENSORS AND THEIR RESPECTIVE AFFILIATES UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO TEN DOLLARS ($10). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
13. Indemnification. You will fully defend, indemnify and hold each of Thundercomm, its Licensors and their respective Affiliates, officers’ directors, employees, agents, successors and assigns harmless from and against any and all claims, demands, losses, damages, judgments, costs, liabilities and expenses (including attorneys’ fees) arising out of or related to: (i) Your use or misuse of the Development Platform Software and/or Documentation, including, without limitation, any use, reproduction or distribution of the Development Platform Software and/or Documentation by You, which causes an infringement of any patent, copyright, trademark, trade secret, or other Intellectual Property Rights or publicity or privacy rights of any third parties arising in any jurisdiction anywhere in the world; (ii) the applications and/or services developed by You, whether alone or in combination; and (iii) any breach of this Agreement by You. If requested by Thundercomm, You agree to defend Thundercomm and its Licensors in connection with any third party claims, demands, or causes of action resulting from, arising out of or in connection with any of the foregoing.
14. Covenant Not to Assert. You hereby agree that neither You nor any of Your Affiliates will assert any action for the infringement of Your or Your Affiliates’ Patents against (i) Thundercomm, its Licensors or their respective Affiliates for making (or having made), importing,using, selling, licensing or otherwise disposing of Development Platform Materials (as defined below); (ii) Thundercomm, its Licensors or their respective Affiliates, foundries, for making Development Platform Materials for, or selling Development Platform Materials to, Thundercomm, its Licensors or their respective Affiliates; or (iii) any direct or indirect customers of Thundercomm, its Licensors or their respective Affiliates, for using Development Platform Materials purchased from Thundercomm, its Licensors or their respective Affiliates. As used herein, the term “Development Platform Materials” means the Development Platform Software, Development Platform Hardware and any subcomponents or software embedded within the foregoing, including without limitation, any application specific integrated circuits (ASICs), multi-chip modules, electronic devices, integrated circuits, system in package (SIP), system on Chip (SoC), system on module (SOM) and including firmware thereon and accompanying or associated software.
15. Government Compliance. You shall be solely responsible for knowing and complying with any and all applicable federal, state and local statutes, laws and regulations, including, but not limited to, knowing and complying with any applicable Federal Communications Commission rules and regulations, as well as any federal, state and local statutes, laws and regulations pertaining to privacy, data protection and information security, with respect to the use of the Development Platform Software and/or Documentation. You acknowledge that all hardware, software, source code and technology (collectively, "Products") obtained from Thundercomm and its Licensors are subject to the US and Canadian government export control and economic sanctions laws. You shall ensure that You, Your subsidiaries and Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, "export") any Products or direct products thereof to any destination, person, entity or end use prohibited or restricted under US and/or Canadian laws without prior US and/or Canadian government authorization, as the case may be, to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan, Libya and Syria, but any amendments to the countries under a US embargo or sanction shall apply. You acknowledge that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with the same is the responsibility of You. This Section shall survive the expiration or termination of this Agreement. You shall not Export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China.
16. U.S. Government End Users. If You are acting on behalf of an agency or instrumentality of the U.S. government, the Development Platform Software, is “commercial computer software” and developed exclusively at private expense by Thundercomm and/or its Licensors, as the case may be. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Development Platform Software is governed by the terms of this Agreement.
17. Third Party Beneficiary. Licensors of Thundercomm and their Affiliates are third party beneficiaries of this Agreement, and thus this Agreement is directly enforceable by such Licensors and their Affiliates.
18. Non-Exclusive. It is expressly understood that this Agreement is non-exclusive for both parties. Except as specifically agreed otherwise, this Agreement does not grant either party any exclusive privileges of rights.
19. Miscellaneous. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of laws principles. Any dispute, claim, or controversy arising from or relating to this Agreement or the breach or validity hereof (each, a “Dispute”) will be finally settled by a confidential arbitration proceeding conducted in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”). The place of arbitration will be Singapore. The language of the arbitration will be English. Except as may be required by law, You may not disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Thundercomm. The arbitrator’s award will be final and binding on the parties. You agree that judgment may be entered upon such an award in any court of competent jurisdiction. You on behalf of Yourself, Your subsidiaries and Affiliates, acknowledge and agree that (i) no Affiliate is a third party beneficiary of this Agreement, (ii) no Affiliate shall have any standing to initiate any claim or cause of action under this Agreement, and (iii) any and all claims against Thundercomm and/or its Licensors which may arise under this Agreement shall be brought solely and exclusively by You. In the event of any proceeding to enforce the provisions of this Agreement or to resolve any claim or dispute arising from or related to this Agreement, the prevailing party (as determined by the arbitrator) shall be entitled to reasonable attorneys' fees as fixed by the arbitrator. If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement which shall continue in full force and effect, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent permissible the intent and agreements of the parties set forth herein. Any failure by either party to enforce any of its rights under this Agreement shall not be deemed a waiver of any right which such party has under this Agreement.
This Agreement shall be binding upon and inure to the benefit of any successor or permitted assignee of each of the parties. Neither party shall assign or otherwise transfer any of its rights, obligations or licenses under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Thundercomm shall be entitled to assign all or any part of its rights or obligations under this Agreement to one or more of its Affiliates or to a purchaser of all or substantially all of its business, assets or stock.
The restrictions, limitations, exclusions and conditions set forth in this Agreement shall apply even if Thundercomm, its Licensors or any of their Affiliates become aware of or fails to act in a manner to address any violation or failure to comply therewith. You hereby acknowledge and agree that the restrictions, limitations, conditions and exclusions imposed in this Agreement on the rights granted in this Agreement are not a derogation of the benefits of such rights. Thundercomm and You are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership. This Agreement is the entire and exclusive agreement between Thundercomm and You with respect to the Development Platform Software and Documentation which You have received hereunder and supersedes all prior agreements between Thundercomm and You, along with any other communications (whether written or oral) between Thundercomm and You. No purchase order or other ordering document of Yours which purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement unless signed by an authorized representative of each of the parties. The terms of this Agreement may only be varied by written amendment between the parties and signed by a duly authorized representative of each party.