TAPWAVE, INC.
SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE AND ASSOCIATED DOCUMENTATION THAT IS PROVIDED WITH THIS AGREEMENT (“SOFTWARE,” “DOCUMENTATION,” AND COLLECTIVELY, “LICENSED MATERIALS”).
BY USING ANY LICENSED MATERIALS, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU WILL BE CONSENTING TO BE BOUND BY THEM.  IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THE LICENSED MATERIALS AND RETURN THE LICENSED MATERIALS AND ANY ASSOCIATED HARDWARE PROVIDED BY TAPWAVE, INC. (“TAPWAVE HARDWARE”) UNUSED IN THE ORIGINAL SHIPPING CONTAINER TO THE PLACE OF PURCHASE FOR A FULL REFUND. 
The Software provided by Tapwave either is incorporated or embedded in the Tapwave Hardware (“Embedded Software”) or is provided on a standalone basis (“Standalone Software”).
1.	License and Restrictions.
	1.1	Grant.  Subject to the terms and conditions of this Agreement, Tapwave, Inc. ("Tapwave") hereby grants to you (“Licensee”) a limited, non-exclusive, nontransferable license, without the right to sublicense: (a) to use one (1) copy of the Embedded Software on Tapwave Hardware; and (b) to install and use up to two (2) copies of the Standalone Software on personal computers, each solely in accordance with the Documentation.
	1.2	Restrictions.  The license set forth above does not include any rights to and Licensor shall not (a) use the Licensed Materials in any manner not expressly authorized in Section 1.1, (b) reproduce (except as expressly permitted in Section 1.4), modify, translate or create any derivative work of the Licensed Materials or Tapwave Hardware, (c) sell, lease, loan, provide, distribute or otherwise transfer the Licensed Materials or Tapwave Hardware to any third party except as expressly permitted in Section 1.4, (d) reverse engineer, disassemble, decompile or otherwise attempt to gain access to the source code of the Licensed Materials or Tapwave Hardware, as applicable, (provided, however, that if you are a European Union (“EU”) resident, information necessary to achieve interoperability of the Licensed Materials with other programs within the meaning of the EU Directive on the Legal Protection of Computer Programs is available from Tapwave upon written request), (e) use the Licensed Materials for third-party training, commercial time-sharing, service bureau, subscription service or rental use, (f) remove, alter or cover any copyright notices or other proprietary rights notices placed or embedded on or in any Licensed Materials or Tapwave Hardware, (g) unbundle any hardware or software component of the Licensed Materials or Tapwave Hardware, or (h) cause or permit any third party to do any of the foregoing. Except as expressly set forth in this Section, Tapwave grants Licensee no licenses of any kind hereunder.
	1.3	Transfer.  Licensee shall have the right to transfer the Software solely as embedded in Tapwave Hardware in connection with a transfer of all of Licensee’s right, title and interest in such Tapwave Hardware to a third party; provided, that, Licensee transfers such Software and associated Documentation and all copies thereof subject to the terms and conditions of this Agreement and such third party agrees to be bound by all the terms and conditions of this Agreement.
	1.4	Back-up Copy.  Licensee may make a single copy of the Standalone Software solely for its back-up, disaster recovery or archival purposes; provided that any such copy includes all notices that appear on the original.  Any copy is the exclusive property of Tapwave.
2.	Ownership.  Licensee acknowledges and agrees that Tapwave and its suppliers own all right, title and interest (including all proprietary rights) in and to the Licensed Materials.  Licensee acknowledges that the license granted under this Agreement does not provide Licensee with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this Agreement. 
3.	Limited Warranty & Disclaimer.  Any limited warranty for the Licensed Materials or Tapwave Hardware and Tapwave’s sole and exclusive liability thereunder is as set forth in Tapwave’s standard warranty documentation.  EXCEPT FOR ANY LIMITED WARRANTIES PROVIDED BY TAPWAVE IN SUCH DOCUMENTATION, THE LICENSED MATERIALS ARE PROVIDED “AS IS ” AND NEITHER TAPWAVE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR THOSE ARISING OUT OF CUSTOM OR TRADE USAGE, ARE EXPRESSLY EXCLUDED ON BEHALF OF TAPWAVE AND ITS SUPPLIERS.  SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE.  TAPWAVE'S LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS.  LICENSEE MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
4.	Term and Termination.  This Agreement continues in perpetuity unless earlier terminated pursuant to this Section.  Licensee may terminate this Agreement at any time by destroying all copies of the Licensed Materials.  This Agreement and all licenses granted hereunder will terminate immediately without notice from Tapwave if Licensee fails to comply with any provision of this Agreement.  Upon any termination, Licensee must destroy all copies of the Licensed Materials.  
5.	Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TAPWAVE OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS, LOST, PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE LICENSED MATERIALS OR TAPWAVE HARDWARE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAPWAVE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR FOR BREACH THEREOF SHALL NOT EXCEED THE PRICE PAID FOR THE LICENSED MATERIALS.  THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF REPRESENTATIVES OF TAPWAVE OR ANY OF ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE.
6.	Miscellaneous.  This Agreement is governed and interpreted in accordance with the laws of the State of California without reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods.  Each party hereto consents to the exclusive jurisdiction and venue of the courts of San Mateo County, California.  Licensee shall not transfer, assign or delegate this Agreement, except as permitted in Section 1.3.  Subject to the foregoing, the terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective heirs, successors, assigns and legal representatives.  No failure by Tapwave to enforce any of its rights under this Agreement will act as a waiver of such rights. This Agreement constitutes the entire agreement, and supersedes any and all other written or oral agreements existing, between the parties hereto regarding the subject matter of this Agreement.  This Agreement may not be modified without the prior written consent of both parties. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.  The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.  All notices permitted or required under this Agreement to Tapwave shall be in writing and shall be mailed by registered or certified mail, postage prepaid, to Tapwave at 1901 Landings Drive, Bldg G, Mountain View, CA  94043 or such other address of Tapwave as is posted on Tapwave's web site as Tapwave's corporate address.  Licensee agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce or other agency or authority of the United States or other applicable countries, and not to transfer, or authorize the transfer, of the Licensed Materials or Tapwave Hardware to a prohibited country or otherwise in violation of any such restrictions or regulations. All technical data and computer software provided under this Agreement is commercial in nature and developed solely at private expense.  Any software is delivered as Commercial Computer Software as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided herein.  Technical data is provided with limited rights only as provided in DFARS 252.227-7015 (Nov. 1995) or FAR 52.227-14 (June 1987), whichever is applicable.  Tapwave’s suppliers, including PalmSource, Inc., are intended third party beneficiaries.







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