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TECHNOLOGY PREVIEW LICENSE AGREEMENT |
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|
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For individuals and/or legal entities resident in the Americas (North |
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America, Central America and South America), the applicable licensing |
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terms are specified under the heading "Technology Preview License |
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Agreement: The Americas". |
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|
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For individuals and/or legal entities not resident in The Americas, the |
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applicable licensing terms are specified under the heading "Technology |
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Preview License Agreement: Rest of the World". |
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|
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|
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TECHNOLOGY PREVIEW LICENSE AGREEMENT: The Americas |
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Agreement version 2.4 |
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|
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This Technology Preview License Agreement ("Agreement") is a legal |
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agreement between Nokia Inc. ("Nokia"), with its registered office at |
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102 Corporate Park Drive, White Plains, N.Y., U.S.A. 10604 and you (either an |
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individual or a legal entity) ("Licensee") for the Licensed Software (as |
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defined below). |
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|
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1. DEFINITIONS |
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|
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"Affiliate" of a Party shall mean an entity (i) which is directly or |
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indirectly controlling such Party; (ii) which is under the same direct |
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or indirect ownership or control as such Party; or (iii) which is |
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directly or indirectly owned or controlled by such Party. For these |
| 28 |
purposes, an entity shall be treated as being controlled by another if |
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that other entity has fifty percent (50 %) or more of the votes in such |
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entity, is able to direct its affairs and/or to control the composition |
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of its board of directors or equivalent body. |
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|
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"Applications" shall mean Licensee's software products created using the |
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Licensed Software which may include portions of the Licensed Software. |
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|
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"Term" shall mean the period of time six (6) months from the later of |
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(a) the Effective Date; or (b) the date the Licensed Software was |
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initially delivered to Licensee by Nokia. If no specific Effective Date |
| 39 |
is set forth in the Agreement, the Effective Date shall be deemed to be |
| 40 |
the date the Licensed Software was initially delivered to Licensee. |
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|
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"Licensed Software" shall mean the computer software, "online" or |
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electronic documentation, associated media and printed materials, |
| 44 |
including the source code, example programs and the documentation |
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delivered by Nokia to Licensee in conjunction with this Agreement. |
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|
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"Party" or "Parties" shall mean Licensee and/or Nokia. |
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|
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|
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2. OWNERSHIP |
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|
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The Licensed Software is protected by copyright laws and international |
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copyright treaties, as well as other intellectual property laws and |
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treaties. The Licensed Software is licensed, not sold. |
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|
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If Licensee provides any findings, proposals, suggestions or other |
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feedback ("Feedback") to Nokia regarding the Licensed Software, Nokia |
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shall own all right, title and interest including the intellectual |
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property rights in and to such Feedback, excluding however any existing |
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patent rights of Licensee. To the extent Licensee owns or controls any |
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patents for such Feedback Licensee hereby grants to Nokia and its |
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Affiliates, a worldwide, perpetual, non-transferable, sublicensable, |
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royalty-free license to (i) use, copy and modify Feedback and to create |
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derivative works thereof, (ii) to make (and have made), use, import, |
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sell, offer for sale, lease, dispose, offer for disposal or otherwise |
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exploit any products or services of Nokia containing Feedback,, and |
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(iii) sublicense all the foregoing rights to third party licensees and |
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customers of Nokia and/or its Affiliates. |
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|
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|
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3. VALIDITY OF THE AGREEMENT |
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|
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By installing, copying, or otherwise using the Licensed Software, |
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Licensee agrees to be bound by the terms of this Agreement. If Licensee |
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does not agree to the terms of this Agreement, Licensee may not install, |
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copy, or otherwise use the Licensed Software. Upon Licensee's acceptance |
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of the terms and conditions of this Agreement, Nokia grants Licensee the |
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right to use the Licensed Software in the manner provided below. |
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|
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|
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4. LICENSES |
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|
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4.1. Using and Copying |
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|
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Nokia grants to Licensee a non-exclusive, non-transferable, time-limited |
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license to use and copy the Licensed Software for sole purpose of |
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designing, developing and testing Applications, and evaluating and the |
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Licensed Software during the Term. |
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|
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Licensee may install copies of the Licensed Software on an unlimited |
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number of computers provided that (a) if an individual, only such |
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individual; or (b) if a legal entity only its employees; use the |
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Licensed Software for the authorized purposes. |
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|
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4.2 No Distribution or Modifications |
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|
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Licensee may not disclose, modify, sell, market, commercialise, |
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distribute, loan, rent, lease, or license the Licensed Software or any |
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copy of it or use the Licensed Software for any purpose that is not |
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expressly granted in this Section 4. Licensee may not alter or remove |
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any details of ownership, copyright, trademark or other property right |
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connected with the Licensed Software. Licensee may not distribute any |
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software statically or dynamically linked with the Licensed Software. |
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|
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4.3 No Technical Support |
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|
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Nokia has no obligation to furnish Licensee with any technical support |
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whatsoever. Any such support is subject to separate agreement between |
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the Parties. |
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|
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|
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5. PRE-RELEASE CODE |
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The Licensed Software contains pre-release code that is not at the level |
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of performance and compatibility of a final, generally available, |
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product offering. The Licensed Software may not operate correctly and |
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may be substantially modified prior to the first commercial product |
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release, if any. Nokia is not obligated to make this or any later |
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version of the Licensed Software commercially available. The License |
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Software is "Not for Commercial Use" and may only be used for the |
| 120 |
purposes described in Section 4. The Licensed Software may not be used |
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in a live operating environment where it may be relied upon to perform |
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in the same manner as a commercially released product or with data that |
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has not been sufficiently backed up. |
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|
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6. THIRD PARTY SOFTWARE |
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|
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The Licensed Software may provide links to third party libraries or code |
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(collectively "Third Party Software") to implement various functions. |
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Third Party Software does not comprise part of the Licensed Software. In |
| 130 |
some cases, access to Third Party Software may be included along with |
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the Licensed Software delivery as a convenience for development and |
| 132 |
testing only. Such source code and libraries may be listed in the |
| 133 |
".../src/3rdparty" source tree delivered with the Licensed Software or |
| 134 |
documented in the Licensed Software where the Third Party Software is |
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used, as may be amended from time to time, do not comprise the Licensed |
| 136 |
Software. Licensee acknowledges (1) that some part of Third Party |
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Software may require additional licensing of copyright and patents from |
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the owners of such, and (2) that distribution of any of the Licensed |
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Software referencing any portion of a Third Party Software may require |
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appropriate licensing from such third parties. |
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|
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|
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7. LIMITED WARRANTY AND WARRANTY DISCLAIMER |
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|
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The Licensed Software is licensed to Licensee "as is". To the maximum |
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extent permitted by applicable law, Nokia on behalf of itself and its |
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suppliers, disclaims all warranties and conditions, either express or |
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implied, including, but not limited to, implied warranties of |
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merchantability, fitness for a particular purpose, title and |
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non-infringement with regard to the Licensed Software. |
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|
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|
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8. LIMITATION OF LIABILITY |
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|
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If, Nokia's warranty disclaimer notwithstanding, Nokia is held liable to |
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Licensee, whether in contract, tort or any other legal theory, based on |
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the Licensed Software, Nokia's entire liability to Licensee and |
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Licensee's exclusive remedy shall be, at Nokia's option, either (A) |
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return of the price Licensee paid for the Licensed Software, or (B) |
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repair or replacement of the Licensed Software, provided Licensee |
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returns to Nokia all copies of the Licensed Software as originally |
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delivered to Licensee. Nokia shall not under any circumstances be liable |
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to Licensee based on failure of the Licensed Software if the failure |
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resulted from accident, abuse or misapplication, nor shall Nokia under |
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any circumstances be liable for special damages, punitive or exemplary |
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damages, damages for loss of profits or interruption of business or for |
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loss or corruption of data. Any award of damages from Nokia to Licensee |
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shall not exceed the total amount Licensee has paid to Nokia in |
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connection with this Agreement. |
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|
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|
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9. CONFIDENTIALITY |
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|
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Each party acknowledges that during the Term of this Agreement it shall |
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have access to information about the other party's business, business |
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methods, business plans, customers, business relations, technology, and |
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other information, including the terms of this Agreement, that is |
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confidential and of great value to the other party, and the value of |
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which would be significantly reduced if disclosed to third parties (the |
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"Confidential Information"). Accordingly, when a party (the "Receiving |
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Party") receives Confidential Information from another party (the |
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"Disclosing Party"), the Receiving Party shall, and shall obligate its |
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employees and agents and employees and agents of its Affiliates to: (i) |
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maintain the Confidential Information in strict confidence; (ii) not |
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disclose the Confidential Information to a third party without the |
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Disclosing Party's prior written approval; and (iii) not, directly or |
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indirectly, use the Confidential Information for any purpose other than |
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for exercising its rights and fulfilling its responsibilities pursuant |
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to this Agreement. Each party shall take reasonable measures to protect |
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the Confidential Information of the other party, which measures shall |
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not be less than the measures taken by such party to protect its own |
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confidential and proprietary information. |
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|
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"Confidential Information" shall not include information that (a) is or |
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becomes generally known to the public through no act or omission of the |
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Receiving Party; (b) was in the Receiving Party's lawful possession |
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prior to the disclosure hereunder and was not subject to limitations on |
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disclosure or use; (c) is developed by the Receiving Party without |
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access to the Confidential Information of the Disclosing Party or by |
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persons who have not had access to the Confidential Information of the |
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Disclosing Party as proven by the written records of the Receiving |
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Party; (d) is lawfully disclosed to the Receiving Party without |
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restrictions, by a third party not under an obligation of |
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confidentiality; or (e) the Receiving Party is legally compelled to |
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disclose the information, in which case the Receiving Party shall assert |
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the privileged and confidential nature of the information and cooperate |
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fully with the Disclosing Party to protect against and prevent |
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disclosure of any Confidential Information and to limit the scope of |
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disclosure and the dissemination of disclosed Confidential Information |
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by all legally available means. |
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|
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The obligations of the Receiving Party under this Section shall continue |
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during the Initial Term and for a period of five (5) years after |
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expiration or termination of this Agreement. To the extent that the |
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terms of the Non-Disclosure Agreement between Nokia and Licensee |
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conflict with the terms of this Section 9, this Section 9 shall be |
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controlling over the terms of the Non-Disclosure Agreement. |
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|
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|
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10. GENERAL PROVISIONS |
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|
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10.1 No Assignment |
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|
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Licensee shall not be entitled to assign or transfer all or any of its |
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rights, benefits and obligations under this Agreement without the prior |
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written consent of Nokia, which shall not be unreasonably withheld. |
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|
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10.2 Termination |
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|
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Nokia may terminate the Agreement at any time immediately upon written |
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notice by Nokia to Licensee if Licensee breaches this Agreement. |
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|
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Upon termination of this Agreement, Licensee shall return to Nokia all |
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copies of Licensed Software that were supplied by Nokia. All other |
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copies of Licensed Software in the possession or control of Licensee |
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must be erased or destroyed. An officer of Licensee must promptly |
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deliver to Nokia a written confirmation that this has occurred. |
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|
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10.3 Surviving Sections |
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|
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Any terms and conditions that by their nature or otherwise reasonably |
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should survive a cancellation or termination of this Agreement shall |
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also be deemed to survive. Such terms and conditions include, but are |
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not limited to the following Sections: 2, 5, 6, 7, 8, 9, 10.2, 10.3, 10.4, |
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10.5, 10.6, 10.7, and 10.8 of this Agreement. |
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|
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10.4 Entire Agreement |
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|
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This Agreement constitutes the complete agreement between the parties |
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and supersedes all prior or contemporaneous discussions, |
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representations, and proposals, written or oral, with respect to the |
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subject matters discussed herein, with the exception of the |
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non-disclosure agreement executed by the parties in connection with this |
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Agreement ("Non-Disclosure Agreement"), if any, shall be subject to |
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Section 9. No modification of this Agreement shall be effective unless |
| 256 |
contained in a writing executed by an authorized representative of each |
| 257 |
party. No term or condition contained in Licensee's purchase order shall |
| 258 |
apply unless expressly accepted by Nokia in writing. If any provision of |
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the Agreement is found void or unenforceable, the remainder shall remain |
| 260 |
valid and enforceable according to its terms. If any remedy provided is |
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determined to have failed for its essential purpose, all limitations of |
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liability and exclusions of damages set forth in this Agreement shall |
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remain in effect. |
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|
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10.5 Export Control |
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|
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Licensee acknowledges that the Licensed Software may be subject to |
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export control restrictions of various countries. Licensee shall fully |
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comply with all applicable export license restrictions and requirements |
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as well as with all laws and regulations relating to the importation of |
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the Licensed Software and shall procure all necessary governmental |
| 272 |
authorizations, including without limitation, all necessary licenses, |
| 273 |
approvals, permissions or consents, where necessary for the |
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re-exportation of the Licensed Software., |
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|
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10.6 Governing Law and Legal Venue |
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|
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This Agreement shall be governed by and construed in accordance with the |
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federal laws of the United States of America and the internal laws of |
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the State of New York without given effect to any choice of law rule |
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that would result in the application of the laws of any other |
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jurisdiction. The United Nations Convention on Contracts for the |
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International Sale of Goods (CISG) shall not apply. Each Party (a) |
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hereby irrevocably submits itself to and consents to the jurisdiction of |
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the United States District Court for the Southern District of New York |
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(or if such court lacks jurisdiction, the state courts of the State of |
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New York) for the purposes of any action, claim, suit or proceeding |
| 288 |
between the Parties in connection with any controversy, claim, or |
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dispute arising out of or relating to this Agreement; and (b) hereby |
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waives, and agrees not to assert by way of motion, as a defense or |
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otherwise, in any such action, claim, suit or proceeding, any claim that |
| 292 |
is not personally subject to the jurisdiction of such court(s), that the |
| 293 |
action, claim, suit or proceeding is brought in an inconvenient forum or |
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that the venue of the action, claim, suit or proceeding is improper. |
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Notwithstanding the foregoing, nothing in this Section 9.6 is intended |
| 296 |
to, or shall be deemed to, constitute a submission or consent to, or |
| 297 |
selection of, jurisdiction, forum or venue for any action for patent |
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infringement, whether or not such action relates to this Agreement. |
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|
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10.7 No Implied License |
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|
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There are no implied licenses or other implied rights granted under this |
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Agreement, and all rights, save for those expressly granted hereunder, |
| 304 |
shall remain with Nokia and its licensors. In addition, no licenses or |
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immunities are granted to the combination of the Licensed Software with |
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any other software or hardware not delivered by Nokia under this |
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Agreement. |
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|
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10.8 Government End Users |
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|
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A "U.S. Government End User" shall mean any agency or entity of the |
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government of the United States. The following shall apply if Licensee |
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is a U.S. Government End User. The Licensed Software is a "commercial |
| 314 |
item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), |
| 315 |
consisting of "commercial computer software" and "commercial computer |
| 316 |
software documentation," as such terms are used in 48 C.F.R. 12.212 |
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(Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 |
| 318 |
through 227.7202-4 (June 1995), all U.S. Government End Users acquire |
| 319 |
the Licensed Software with only those rights set forth herein. The |
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Licensed Software (including related documentation) is provided to U.S. |
| 321 |
Government End Users: (a) only as a commercial end item; and (b) only |
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pursuant to this Agreement. |
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|
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|
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|
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|
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|
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TECHNOLOGY PREVIEW LICENSE AGREEMENT: Rest of the World |
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Agreement version 2.4 |
| 330 |
|
| 331 |
This Technology Preview License Agreement ("Agreement") is a legal |
| 332 |
agreement between Nokia Corporation ("Nokia"), with its registered |
| 333 |
office at Keilalahdentie 4, 02150 Espoo, Finland and you (either an |
| 334 |
individual or a legal entity) ("Licensee") for the Licensed Software (as |
| 335 |
defined below). |
| 336 |
|
| 337 |
1. DEFINITIONS |
| 338 |
|
| 339 |
"Affiliate" of a Party shall mean an entity (i) which is directly or |
| 340 |
indirectly controlling such Party; (ii) which is under the same direct |
| 341 |
or indirect ownership or control as such Party; or (iii) which is |
| 342 |
directly or indirectly owned or controlled by such Party. For these |
| 343 |
purposes, an entity shall be treated as being controlled by another if |
| 344 |
that other entity has fifty percent (50 %) or more of the votes in such |
| 345 |
entity, is able to direct its affairs and/or to control the composition |
| 346 |
of its board of directors or equivalent body. |
| 347 |
|
| 348 |
"Applications" shall mean Licensee's software products created using the |
| 349 |
Licensed Software which may include portions of the Licensed Software. |
| 350 |
|
| 351 |
"Term" shall mean the period of time six (6) months from the later of |
| 352 |
(a) the Effective Date; or (b) the date the Licensed Software was |
| 353 |
initially delivered to Licensee by Nokia. If no specific Effective Date |
| 354 |
is set forth in the Agreement, the Effective Date shall be deemed to be |
| 355 |
the date the Licensed Software was initially delivered to Licensee. |
| 356 |
|
| 357 |
"Licensed Software" shall mean the computer software, "online" or |
| 358 |
electronic documentation, associated media and printed materials, |
| 359 |
including the source code, example programs and the documentation |
| 360 |
delivered by Nokia to Licensee in conjunction with this Agreement. |
| 361 |
|
| 362 |
"Party" or "Parties" shall mean Licensee and/or Nokia. |
| 363 |
|
| 364 |
|
| 365 |
2. OWNERSHIP |
| 366 |
|
| 367 |
The Licensed Software is protected by copyright laws and international |
| 368 |
copyright treaties, as well as other intellectual property laws and |
| 369 |
treaties. The Licensed Software is licensed, not sold. |
| 370 |
|
| 371 |
If Licensee provides any findings, proposals, suggestions or other |
| 372 |
feedback ("Feedback") to Nokia regarding the Licensed Software, Nokia |
| 373 |
shall own all right, title and interest including the intellectual |
| 374 |
property rights in and to such Feedback, excluding however any existing |
| 375 |
patent rights of Licensee. To the extent Licensee owns or controls any |
| 376 |
patents for such Feedback Licensee hereby grants to Nokia and its |
| 377 |
Affiliates, a worldwide, perpetual, non-transferable, sublicensable, |
| 378 |
royalty-free license to (i) use, copy and modify Feedback and to create |
| 379 |
derivative works thereof, (ii) to make (and have made), use, import, |
| 380 |
sell, offer for sale, lease, dispose, offer for disposal or otherwise |
| 381 |
exploit any products or services of Nokia containing Feedback,, and |
| 382 |
(iii) sublicense all the foregoing rights to third party licensees and |
| 383 |
customers of Nokia and/or its Affiliates. |
| 384 |
|
| 385 |
3. VALIDITY OF THE AGREEMENT |
| 386 |
|
| 387 |
By installing, copying, or otherwise using the Licensed Software, |
| 388 |
Licensee agrees to be bound by the terms of this Agreement. If Licensee |
| 389 |
does not agree to the terms of this Agreement, Licensee may not install, |
| 390 |
copy, or otherwise use the Licensed Software. Upon Licensee's acceptance |
| 391 |
of the terms and conditions of this Agreement, Nokia grants Licensee the |
| 392 |
right to use the Licensed Software in the manner provided below. |
| 393 |
|
| 394 |
|
| 395 |
4. LICENSES |
| 396 |
|
| 397 |
4.1. Using and Copying |
| 398 |
|
| 399 |
Nokia grants to Licensee a non-exclusive, non-transferable, time-limited |
| 400 |
license to use and copy the Licensed Software for sole purpose of |
| 401 |
designing, developing and testing Applications, and evaluating and the |
| 402 |
Licensed Software during the Term. |
| 403 |
|
| 404 |
Licensee may install copies of the Licensed Software on an unlimited |
| 405 |
number of computers provided that (a) if an individual, only such |
| 406 |
individual; or (b) if a legal entity only its employees; use the |
| 407 |
Licensed Software for the authorized purposes. |
| 408 |
|
| 409 |
4.2 No Distribution or Modifications |
| 410 |
|
| 411 |
Licensee may not disclose, modify, sell, market, commercialise, |
| 412 |
distribute, loan, rent, lease, or license the Licensed Software or any |
| 413 |
copy of it or use the Licensed Software for any purpose that is not |
| 414 |
expressly granted in this Section 4. Licensee may not alter or remove |
| 415 |
any details of ownership, copyright, trademark or other property right |
| 416 |
connected with the Licensed Software. Licensee may not distribute any |
| 417 |
software statically or dynamically linked with the Licensed Software. |
| 418 |
|
| 419 |
4.3 No Technical Support |
| 420 |
|
| 421 |
Nokia has no obligation to furnish Licensee with any technical support |
| 422 |
whatsoever. Any such support is subject to separate agreement between |
| 423 |
the Parties. |
| 424 |
|
| 425 |
|
| 426 |
5. PRE-RELEASE CODE |
| 427 |
|
| 428 |
The Licensed Software contains pre-release code that is not at the level |
| 429 |
of performance and compatibility of a final, generally available, |
| 430 |
product offering. The Licensed Software may not operate correctly and |
| 431 |
may be substantially modified prior to the first commercial product |
| 432 |
release, if any. Nokia is not obligated to make this or any later |
| 433 |
version of the Licensed Software commercially available. The License |
| 434 |
Software is "Not for Commercial Use" and may only be used for the |
| 435 |
purposes described in Section 4. The Licensed Software may not be used |
| 436 |
in a live operating environment where it may be relied upon to perform |
| 437 |
in the same manner as a commercially released product or with data that |
| 438 |
has not been sufficiently backed up. |
| 439 |
|
| 440 |
6. THIRD PARTY SOFTWARE |
| 441 |
|
| 442 |
The Licensed Software may provide links to third party libraries or code |
| 443 |
(collectively "Third Party Software") to implement various functions. |
| 444 |
Third Party Software does not comprise part of the Licensed Software. In |
| 445 |
some cases, access to Third Party Software may be included along with |
| 446 |
the Licensed Software delivery as a convenience for development and |
| 447 |
testing only. Such source code and libraries may be listed in the |
| 448 |
".../src/3rdparty" source tree delivered with the Licensed Software or |
| 449 |
documented in the Licensed Software where the Third Party Software is |
| 450 |
used, as may be amended from time to time, do not comprise the Licensed |
| 451 |
Software. Licensee acknowledges (1) that some part of Third Party |
| 452 |
Software may require additional licensing of copyright and patents from |
| 453 |
the owners of such, and (2) that distribution of any of the Licensed |
| 454 |
Software referencing any portion of a Third Party Software may require |
| 455 |
appropriate licensing from such third parties. |
| 456 |
|
| 457 |
|
| 458 |
7. LIMITED WARRANTY AND WARRANTY DISCLAIMER |
| 459 |
|
| 460 |
The Licensed Software is licensed to Licensee "as is". To the maximum |
| 461 |
extent permitted by applicable law, Nokia on behalf of itself and its |
| 462 |
suppliers, disclaims all warranties and conditions, either express or |
| 463 |
implied, including, but not limited to, implied warranties of |
| 464 |
merchantability, fitness for a particular purpose, title and |
| 465 |
non-infringement with regard to the Licensed Software. |
| 466 |
|
| 467 |
|
| 468 |
8. LIMITATION OF LIABILITY |
| 469 |
|
| 470 |
If, Nokia's warranty disclaimer notwithstanding, Nokia is held liable to |
| 471 |
Licensee, whether in contract, tort or any other legal theory, based on |
| 472 |
the Licensed Software, Nokia's entire liability to Licensee and |
| 473 |
Licensee's exclusive remedy shall be, at Nokia's option, either (A) |
| 474 |
return of the price Licensee paid for the Licensed Software, or (B) |
| 475 |
repair or replacement of the Licensed Software, provided Licensee |
| 476 |
returns to Nokia all copies of the Licensed Software as originally |
| 477 |
delivered to Licensee. Nokia shall not under any circumstances be liable |
| 478 |
to Licensee based on failure of the Licensed Software if the failure |
| 479 |
resulted from accident, abuse or misapplication, nor shall Nokia under |
| 480 |
any circumstances be liable for special damages, punitive or exemplary |
| 481 |
damages, damages for loss of profits or interruption of business or for |
| 482 |
loss or corruption of data. Any award of damages from Nokia to Licensee |
| 483 |
shall not exceed the total amount Licensee has paid to Nokia in |
| 484 |
connection with this Agreement. |
| 485 |
|
| 486 |
|
| 487 |
9. CONFIDENTIALITY |
| 488 |
|
| 489 |
Each party acknowledges that during the Term of this Agreement it shall |
| 490 |
have access to information about the other party's business, business |
| 491 |
methods, business plans, customers, business relations, technology, and |
| 492 |
other information, including the terms of this Agreement, that is |
| 493 |
confidential and of great value to the other party, and the value of |
| 494 |
which would be significantly reduced if disclosed to third parties (the |
| 495 |
"Confidential Information"). Accordingly, when a party (the "Receiving |
| 496 |
Party") receives Confidential Information from another party (the |
| 497 |
"Disclosing Party"), the Receiving Party shall, and shall obligate its |
| 498 |
employees and agents and employees and agents of its Affiliates to: (i) |
| 499 |
maintain the Confidential Information in strict confidence; (ii) not |
| 500 |
disclose the Confidential Information to a third party without the |
| 501 |
Disclosing Party's prior written approval; and (iii) not, directly or |
| 502 |
indirectly, use the Confidential Information for any purpose other than |
| 503 |
for exercising its rights and fulfilling its responsibilities pursuant |
| 504 |
to this Agreement. Each party shall take reasonable measures to protect |
| 505 |
the Confidential Information of the other party, which measures shall |
| 506 |
not be less than the measures taken by such party to protect its own |
| 507 |
confidential and proprietary information. |
| 508 |
|
| 509 |
"Confidential Information" shall not include information that (a) is or |
| 510 |
becomes generally known to the public through no act or omission of the |
| 511 |
Receiving Party; (b) was in the Receiving Party's lawful possession |
| 512 |
prior to the disclosure hereunder and was not subject to limitations on |
| 513 |
disclosure or use; (c) is developed by the Receiving Party without |
| 514 |
access to the Confidential Information of the Disclosing Party or by |
| 515 |
persons who have not had access to the Confidential Information of the |
| 516 |
Disclosing Party as proven by the written records of the Receiving |
| 517 |
Party; (d) is lawfully disclosed to the Receiving Party without |
| 518 |
restrictions, by a third party not under an obligation of |
| 519 |
confidentiality; or (e) the Receiving Party is legally compelled to |
| 520 |
disclose the information, in which case the Receiving Party shall assert |
| 521 |
the privileged and confidential nature of the information and cooperate |
| 522 |
fully with the Disclosing Party to protect against and prevent |
| 523 |
disclosure of any Confidential Information and to limit the scope of |
| 524 |
disclosure and the dissemination of disclosed Confidential Information |
| 525 |
by all legally available means. |
| 526 |
|
| 527 |
The obligations of the Receiving Party under this Section shall continue |
| 528 |
during the Initial Term and for a period of five (5) years after |
| 529 |
expiration or termination of this Agreement. To the extent that the |
| 530 |
terms of the Non-Disclosure Agreement between Nokia and Licensee |
| 531 |
conflict with the terms of this Section 9, this Section 9 shall be |
| 532 |
controlling over the terms of the Non-Disclosure Agreement. |
| 533 |
|
| 534 |
|
| 535 |
10. GENERAL PROVISIONS |
| 536 |
|
| 537 |
10.1 No Assignment |
| 538 |
|
| 539 |
Licensee shall not be entitled to assign or transfer all or any of its |
| 540 |
rights, benefits and obligations under this Agreement without the prior |
| 541 |
written consent of Nokia, which shall not be unreasonably withheld. |
| 542 |
|
| 543 |
10.2 Termination |
| 544 |
|
| 545 |
Nokia may terminate the Agreement at any time immediately upon written |
| 546 |
notice by Nokia to Licensee if Licensee breaches this Agreement. |
| 547 |
|
| 548 |
Upon termination of this Agreement, Licensee shall return to Nokia all |
| 549 |
copies of Licensed Software that were supplied by Nokia. All other |
| 550 |
copies of Licensed Software in the possession or control of Licensee |
| 551 |
must be erased or destroyed. An officer of Licensee must promptly |
| 552 |
deliver to Nokia a written confirmation that this has occurred. |
| 553 |
|
| 554 |
10.3 Surviving Sections |
| 555 |
|
| 556 |
Any terms and conditions that by their nature or otherwise reasonably |
| 557 |
should survive a cancellation or termination of this Agreement shall |
| 558 |
also be deemed to survive. Such terms and conditions include, but are |
| 559 |
not limited to the following Sections: 2, 5, 6, 7, 8, 9, 10.2, 10.3, 10.4, |
| 560 |
10.5, 10.6, 10.7, and 10.8 of this Agreement. |
| 561 |
|
| 562 |
10.4 Entire Agreement |
| 563 |
|
| 564 |
This Agreement constitutes the complete agreement between the parties |
| 565 |
and supersedes all prior or contemporaneous discussions, |
| 566 |
representations, and proposals, written or oral, with respect to the |
| 567 |
subject matters discussed herein, with the exception of the |
| 568 |
non-disclosure agreement executed by the parties in connection with this |
| 569 |
Agreement ("Non-Disclosure Agreement"), if any, shall be subject to |
| 570 |
Section 9. No modification of this Agreement shall be effective unless |
| 571 |
contained in a writing executed by an authorized representative of each |
| 572 |
party. No term or condition contained in Licensee's purchase order shall |
| 573 |
apply unless expressly accepted by Nokia in writing. If any provision of |
| 574 |
the Agreement is found void or unenforceable, the remainder shall remain |
| 575 |
valid and enforceable according to its terms. If any remedy provided is |
| 576 |
determined to have failed for its essential purpose, all limitations of |
| 577 |
liability and exclusions of damages set forth in this Agreement shall |
| 578 |
remain in effect. |
| 579 |
|
| 580 |
10.5 Export Control |
| 581 |
|
| 582 |
Licensee acknowledges that the Licensed Software may be subject to |
| 583 |
export control restrictions of various countries. Licensee shall fully |
| 584 |
comply with all applicable export license restrictions and requirements |
| 585 |
as well as with all laws and regulations relating to the importation of |
| 586 |
the Licensed Software and shall procure all necessary governmental |
| 587 |
authorizations, including without limitation, all necessary licenses, |
| 588 |
approvals, permissions or consents, where necessary for the |
| 589 |
re-exportation of the Licensed Software., |
| 590 |
|
| 591 |
10.6 Governing Law and Legal Venue |
| 592 |
|
| 593 |
This Agreement shall be construed and interpreted in accordance with the |
| 594 |
laws of Finland, excluding its choice of law provisions. Any disputes |
| 595 |
arising out of or relating to this Agreement shall be resolved in |
| 596 |
arbitration under the Rules of Arbitration of the Chamber of Commerce of |
| 597 |
Helsinki, Finland. The arbitration tribunal shall consist of one (1), or |
| 598 |
if either Party so requires, of three (3), arbitrators. The award shall |
| 599 |
be final and binding and enforceable in any court of competent |
| 600 |
jurisdiction. The arbitration shall be held in Helsinki, Finland and the |
| 601 |
process shall be conducted in the English language. |
| 602 |
|
| 603 |
10.7 No Implied License |
| 604 |
|
| 605 |
There are no implied licenses or other implied rights granted under this |
| 606 |
Agreement, and all rights, save for those expressly granted hereunder, |
| 607 |
shall remain with Nokia and its licensors. In addition, no licenses or |
| 608 |
immunities are granted to the combination of the Licensed Software with |
| 609 |
any other software or hardware not delivered by Nokia under this |
| 610 |
Agreement. |
| 611 |
|
| 612 |
10.8 Government End Users |
| 613 |
|
| 614 |
A "U.S. Government End User" shall mean any agency or entity of the |
| 615 |
government of the United States. The following shall apply if Licensee |
| 616 |
is a U.S. Government End User. The Licensed Software is a "commercial |
| 617 |
item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), |
| 618 |
consisting of "commercial computer software" and "commercial computer |
| 619 |
software documentation," as such terms are used in 48 C.F.R. 12.212 |
| 620 |
(Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 |
| 621 |
through 227.7202-4 (June 1995), all U.S. Government End Users acquire |
| 622 |
the Licensed Software with only those rights set forth herein. The |
| 623 |
Licensed Software (including related documentation) is provided to U.S. |
| 624 |
Government End Users: (a) only as a commercial end item; and (b) only |
| 625 |
pursuant to this Agreement. |