LGE. LGUP* Software License Agreement PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE UNUSED SOFTWARE AND ALL OTHER ITEMS FOR A FULL REFUND. 1. License and Restrictions on Use. LGE (LG Electroincs, Inc., hereby grants you a non-exclusive, fully paid, limited license to use the LG Windows(TM) Download Program software and the accompanying documentation (the "Software"), for the purposes of... (1) Upgrading the mobile phone software contained in wireless handsets purchased from LG or its affiliate(s), ("Handsets") (2) Updating roaming lists for the Handset(s,) (3) Making changes to and programming the NAM settings for the Handset(s), and (4) Transferring phone book and user data from one Handset to another Handset. You shall not, without the prior written consent of LG, (i) Alter, modify, translate, or adapt any Software, accompanying documentation or create any derivative works based thereon; (ii) Copy any Software (except that you may make one copy for archival purposes); (iii) Assign, sublicense, lease or otherwise transfer the Software in whole or in part; (iv) Use the Software except as specifically contemplated in this Agreement; (v) Combine or merge any portion of the Software with any other software; (vi) Disclose the Software to any third party, or (vii) Use the Software to upgrade any Handset not manufactured and/or sold by LG and/or its affiliate(s). The entire right, title and interest in the Software shall remain with LG, and you shall not remove any copyright notices or other legends from the Software or any accompanying documentation. You shall use the Software furnished by LG solely in accordance with this Agreement, and you shall not, directly or indirectly, disassemble, decompile, reverse engineer, or analyze the physical construction of, the Software or any component thereof for any purpose. This Agreement is not a sale of the Software. LG shall have no obligation under this Agreement to provide: (a) Installation of the Software; (b) Any new features or additional software used in conjunction with the Software; or (c) Any maintenance of the Software. 2. Disclaimer of Warranty. THE SOFTWARE IS FURNISHED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. LG DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY OR ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR ANY WARRANTY WITH REGARD TO ANY CLAIM OF INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR ANY OTHER COMPARABLE STATE STATUTE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. 3. Limitation of Liability. IN NO EVENT SHALL LG BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE TO DELIVER, THE SOFTWARE, EVEN IF LG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER YOUR REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. FURTHER, THE ENTIRE LIABILITY OF LG, AND THE SOLE AND EXCLUSIVE REMEDY OF YOU, FOR ANY CLAIM OR CAUSE OF ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE SOFTWARE WHICH IS THE SUBJECT OF SUCH CLAIM OR CAUSE OF ACTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR CINCIDENTAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. 4. Termination. This license is effective until terminated. You may terminate this license at any time by destroying the Software and all copies thereof. This license will terminate immediately without notice from LG if you fail to comply with any provision of this Agreement. Upon termination you must destroy the Software and all copies thereof. 5. Confidentiality. You acknowledge that the Software, all technical documentation delivered to you by LG hereunder, and all other information relating to the design, development, configuration, use, installation, operation and maintenance of the Software constitutes confidential or proprietary information of LG (referred to as "Confidential Information"). You shall not duplicate, use other than in accordance with this Agreement, or disclose to any third person any Confidential Information. 6. Assignment. You shall not assign this Software nor any right or interest hereunder, or delegate any obligation to be performed without LG's prior written consent. 7. Applicable Law. This Agreement shall be governed by the laws of the State of California, excluding the U.N. Convention on International Sale of Goods, and without regard to conflict of laws or principles. All disputes arising in connection therewith shall be heard only by a court of competent jurisdiction in San Diego County, California, and the prevailing party in any legal proceeding shall be entitled to recover its reasonable attorneys' and experts' fees incurred in connection therewith. YOU HEREBY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING OUT OF OR RELATING TO THE TERMS OF THIS AGREEMENT. 8. Export; Re-export. You shall comply with all U.S. export control laws applicable to the Software and the accompanying documentation and/or any associated "technology" furnished to you by LG. You will not directly or indirectly export or re-export any Software, accompanying documentation, or "technology" without obtaining appropriate authorizations from the U.S. Department of Commerce or other appropriate U.S. government agency. 9. Copyright. All title and copyrights in and to the Software (including but not limited to any images, photographs, animation, video, audio, music, text and "applets," incorporated into the Software) and any copies of the Software, are owned by LG or its suppliers. All rights not specifically granted under this License are reserved by LG. 10. High Risk Activities. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments. Environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). LG and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. 11. U.S. Government Restricted Rights. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is LG Information & Communications, Ltd. 459-9, Kasan-dong, Keumchun-ku, Seoul 153-023, Korea. 12. Miscellaneous Provisions. No addition to or modification to this Agreement shall be effective unless made in writing and signed by the respective representatives of LG and you. Any delay or failure to enforce at any time any provision of this Agreement shall not constitute a waiver of the right thereafter to enforce each and every provision thereof. If any of the provisions of this Agreement are determined to be invalid, illegal, or otherwise unenforceable, the remaining provisions shall remain in full force and effect. The rights and remedies expressly provided to you herein are not exclusive, but are cumulative and in addition to any other rights and remedies available at law or in equity. The rights and obligations which by their sense and context are intended to survive any termination or expiration of the license shall so survive. By opening the package containing the Software, you acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. Notices or inquiries should be directed to... * Windows(TM) is a registered trademark of the MicroSoft(R) Corporation. All Rights Reserved.