| 67ad051 by Lars Knoll at 2009-03-23 |
1 |
TECHNOLOGY PREVIEW LICENSE AGREEMENT |
|
2 |
|
|
3 |
For individuals and/or legal entities resident in the Americas (North |
|
4 |
America, Central America and South America), the applicable licensing |
|
5 |
terms are specified under the heading "Technology Preview License |
|
6 |
Agreement: The Americas". |
|
7 |
|
|
8 |
For individuals and/or legal entities not resident in The Americas, |
|
9 |
the applicable licensing terms are specified under the heading |
|
10 |
"Technology Preview License Agreement: Rest of the World". |
|
11 |
|
|
12 |
|
|
13 |
TECHNOLOGY PREVIEW LICENSE AGREEMENT: The Americas |
|
14 |
Agreement version 2.3 |
|
15 |
|
|
16 |
This Technology Preview License Agreement ("Agreement") is a legal |
|
17 |
agreement between Nokia Inc. ("Nokia"), with its registered office at |
|
18 |
6021 Connection Drive, Irving, TX 75039, U.S.A. and you (either an |
|
19 |
individual or a legal entity) ("Licensee") for the Licensed Software |
|
20 |
(as defined below). |
|
21 |
|
|
22 |
|
|
23 |
1. DEFINITIONS |
|
24 |
|
|
25 |
"Affiliate" of a Party shall mean an entity (i) which is directly or |
|
26 |
indirectly controlling such Party; (ii) which is under the same direct |
|
27 |
or indirect ownership or control as such Party; or (iii) which is |
|
28 |
directly or indirectly owned or controlled by such Party. For these |
|
29 |
purposes, an entity shall be treated as being controlled by another if |
|
30 |
that other entity has fifty percent (50 %) or more of the votes in |
|
31 |
such entity, is able to direct its affairs and/or to control the |
|
32 |
composition of its board of directors or equivalent body. |
|
33 |
|
|
34 |
"Term" shall mean the period of time six (6) months from the later of |
|
35 |
(a) the Effective Date; or (b) the date the Licensed Software was |
|
36 |
initially delivered to Licensee by Nokia. If no specific Effective |
|
37 |
Date is set forth in the Agreement, the Effective Date shall be deemed |
|
38 |
to be the date the Licensed Software was initially delivered to |
|
39 |
Licensee. |
|
40 |
|
|
41 |
"Licensed Software" shall mean the computer software, "online" or |
|
42 |
electronic documentation, associated media and printed materials, |
|
43 |
including the source code, example programs and the documentation |
|
44 |
delivered by Nokia to Licensee in conjunction with this Agreement. |
|
45 |
|
|
46 |
"Party" or "Parties" shall mean Licensee and/or Nokia. |
|
47 |
|
|
48 |
|
|
49 |
2. OWNERSHIP |
|
50 |
|
|
51 |
The Licensed Software is protected by copyright laws and international |
|
52 |
copyright treaties, as well as other intellectual property laws and |
|
53 |
treaties. The Licensed Software is licensed, not sold. |
|
54 |
|
|
55 |
If Licensee provides any findings, proposals, suggestions or other |
|
56 |
feedback ("Feedback") to Nokia regarding the Licensed Software, Nokia |
|
57 |
shall own all right, title and interest including the intellectual |
|
58 |
property rights in and to such Feedback, excluding however any |
|
59 |
existing patent rights of Licensee. To the extent Licensee owns or |
|
60 |
controls any patents for such Feedback Licensee hereby grants to Nokia |
|
61 |
and its Affiliates, a worldwide, perpetual, non-transferable, |
|
62 |
sublicensable, royalty-free license to (i) use, copy and modify |
|
63 |
Feedback and to create derivative works thereof, (ii) to make (and |
|
64 |
have made), use, import, sell, offer for sale, lease, dispose, offer |
|
65 |
for disposal or otherwise exploit any products or services of Nokia |
|
66 |
containing Feedback,, and (iii) sublicense all the foregoing rights to |
|
67 |
third party licensees and customers of Nokia and/or its Affiliates. |
|
68 |
|
|
69 |
|
|
70 |
3. VALIDITY OF THE AGREEMENT |
|
71 |
|
|
72 |
By installing, copying, or otherwise using the Licensed Software, |
|
73 |
Licensee agrees to be bound by the terms of this Agreement. If |
|
74 |
Licensee does not agree to the terms of this Agreement, Licensee may |
|
75 |
not install, copy, or otherwise use the Licensed Software. Upon |
|
76 |
Licensee's acceptance of the terms and conditions of this Agreement, |
|
77 |
Nokia grants Licensee the right to use the Licensed Software in the |
|
78 |
manner provided below. |
|
79 |
|
|
80 |
|
|
81 |
4. LICENSES |
|
82 |
|
|
83 |
4.1 Using and Copying |
|
84 |
|
|
85 |
Nokia grants to Licensee a non-exclusive, non-transferable, |
|
86 |
time-limited license to use and copy the Licensed Software for sole |
|
87 |
purpose of evaluating and testing the Licensed Software during the |
|
88 |
Term. |
|
89 |
|
|
90 |
Licensee may install copies of the Licensed Software on an unlimited |
|
91 |
number of computers provided that (a) if an individual, only such |
|
92 |
individual; or (b) if a legal entity only its employees; use the |
|
93 |
Licensed Software for the authorized purposes. |
|
94 |
|
|
95 |
4.2 No Distribution or Modifications |
|
96 |
|
|
97 |
Licensee may not disclose, modify, sell, market, commercialise, |
|
98 |
distribute, loan, rent, lease, or license the Licensed Software or any |
|
99 |
copy of it or use the Licensed Software for any purpose that is not |
|
100 |
expressly granted in this Section 4. Licensee may not alter or remove |
|
101 |
any details of ownership, copyright, trademark or other property right |
|
102 |
connected with the Licensed Software. Licensee may not distribute any |
|
103 |
software statically or dynamically linked with the Licensed Software. |
|
104 |
|
|
105 |
4.3 No Technical Support |
|
106 |
|
|
107 |
Nokia has no obligation to furnish Licensee with any technical support |
|
108 |
whatsoever. Any such support is subject to separate agreement between |
|
109 |
the Parties. |
|
110 |
|
|
111 |
|
|
112 |
5. PRE-RELEASE CODE |
|
113 |
|
|
114 |
The Licensed Software contains pre-release code that is not at the |
|
115 |
level of performance and compatibility of a final, generally |
|
116 |
available, product offering. The Licensed Software may not operate |
|
117 |
correctly and may be substantially modified prior to the first |
|
118 |
commercial product release, if any. Nokia is not obligated to make |
|
119 |
this or any later version of the Licensed Software commercially |
|
120 |
available. The License Software is "Not for Commercial Use" and may |
|
121 |
only be used for the purposes described in Section 4. The Licensed |
|
122 |
Software may not be used in a live operating environment where it may |
|
123 |
be relied upon to perform in the same manner as a commercially |
|
124 |
released product or with data that has not been sufficiently backed |
|
125 |
up. |
|
126 |
|
|
127 |
|
|
128 |
6. THIRD PARTY SOFTWARE |
|
129 |
|
|
130 |
The Licensed Software may provide links to third party libraries or |
|
131 |
code (collectively "Third Party Software") to implement various |
|
132 |
functions. Third Party Software does not comprise part of the |
|
133 |
Licensed Software. In some cases, access to Third Party Software may |
|
134 |
be included along with the Licensed Software delivery as a convenience |
|
135 |
for development and testing only. Such source code and libraries may |
|
136 |
be listed in the ".../src/3rdparty" source tree delivered with the |
|
137 |
Licensed Software or documented in the Licensed Software where the |
|
138 |
Third Party Software is used, as may be amended from time to time, do |
|
139 |
not comprise the Licensed Software. Licensee acknowledges (1) that |
|
140 |
some part of Third Party Software may require additional licensing of |
|
141 |
copyright and patents from the owners of such, and (2) that |
|
142 |
distribution of any of the Licensed Software referencing any portion |
|
143 |
of a Third Party Software may require appropriate licensing from such |
|
144 |
third parties. |
|
145 |
|
|
146 |
|
|
147 |
7. LIMITED WARRANTY AND WARRANTY DISCLAIMER |
|
148 |
|
|
149 |
The Licensed Software is licensed to Licensee "as is". To the maximum |
|
150 |
extent permitted by applicable law, Nokia on behalf of itself and its |
|
151 |
suppliers, disclaims all warranties and conditions, either express or |
|
152 |
implied, including, but not limited to, implied warranties of |
|
153 |
merchantability, fitness for a particular purpose, title and |
|
154 |
non-infringement with regard to the Licensed Software. |
|
155 |
|
|
156 |
|
|
157 |
8. LIMITATION OF LIABILITY |
|
158 |
|
|
159 |
If, Nokia's warranty disclaimer notwithstanding, Nokia is held liable |
|
160 |
to Licensee, whether in contract, tort or any other legal theory, |
|
161 |
based on the Licensed Software, Nokia's entire liability to Licensee |
|
162 |
and Licensee's exclusive remedy shall be, at Nokia's option, either |
|
163 |
(A) return of the price Licensee paid for the Licensed Software, or |
|
164 |
(B) repair or replacement of the Licensed Software, provided Licensee |
|
165 |
returns to Nokia all copies of the Licensed Software as originally |
|
166 |
delivered to Licensee. Nokia shall not under any circumstances be |
|
167 |
liable to Licensee based on failure of the Licensed Software if the |
|
168 |
failure resulted from accident, abuse or misapplication, nor shall |
|
169 |
Nokia under any circumstances be liable for special damages, punitive |
|
170 |
or exemplary damages, damages for loss of profits or interruption of |
|
171 |
business or for loss or corruption of data. Any award of damages from |
|
172 |
Nokia to Licensee shall not exceed the total amount Licensee has paid |
|
173 |
to Nokia in connection with this Agreement. |
|
174 |
|
|
175 |
|
|
176 |
9. CONFIDENTIALITY |
|
177 |
|
|
178 |
Each party acknowledges that during the Term of this Agreement it |
|
179 |
shall have access to information about the other party's business, |
|
180 |
business methods, business plans, customers, business relations, |
|
181 |
technology, and other information, including the terms of this |
|
182 |
Agreement, that is confidential and of great value to the other party, |
|
183 |
and the value of which would be significantly reduced if disclosed to |
|
184 |
third parties (the "Confidential Information"). Accordingly, when a |
|
185 |
party (the "Receiving Party") receives Confidential Information from |
|
186 |
another party (the "Disclosing Party"), the Receiving Party shall, and |
|
187 |
shall obligate its employees and agents and employees and agents of |
|
188 |
its Affiliates to: (i) maintain the Confidential Information in strict |
|
189 |
confidence; (ii) not disclose the Confidential Information to a third |
|
190 |
party without the Disclosing Party's prior written approval; and (iii) |
|
191 |
not, directly or indirectly, use the Confidential Information for any |
|
192 |
purpose other than for exercising its rights and fulfilling its |
|
193 |
responsibilities pursuant to this Agreement. Each party shall take |
|
194 |
reasonable measures to protect the Confidential Information of the |
|
195 |
other party, which measures shall not be less than the measures taken |
|
196 |
by such party to protect its own confidential and proprietary |
|
197 |
information. |
|
198 |
|
|
199 |
"Confidential Information" shall not include information that (a) is |
|
200 |
or becomes generally known to the public through no act or omission of |
|
201 |
the Receiving Party; (b) was in the Receiving Party's lawful |
|
202 |
possession prior to the disclosure hereunder and was not subject to |
|
203 |
limitations on disclosure or use; (c) is developed by the Receiving |
|
204 |
Party without access to the Confidential Information of the Disclosing |
|
205 |
Party or by persons who have not had access to the Confidential |
|
206 |
Information of the Disclosing Party as proven by the written records |
|
207 |
of the Receiving Party; (d) is lawfully disclosed to the Receiving |
|
208 |
Party without restrictions, by a third party not under an obligation |
|
209 |
of confidentiality; or (e) the Receiving Party is legally compelled to |
|
210 |
disclose the information, in which case the Receiving Party shall |
|
211 |
assert the privileged and confidential nature of the information and |
|
212 |
cooperate fully with the Disclosing Party to protect against and |
|
213 |
prevent disclosure of any Confidential Information and to limit the |
|
214 |
scope of disclosure and the dissemination of disclosed Confidential |
|
215 |
Information by all legally available means. |
|
216 |
|
|
217 |
The obligations of the Receiving Party under this Section shall |
|
218 |
continue during the Initial Term and for a period of five (5) years |
|
219 |
after expiration or termination of this Agreement. To the extent that |
|
220 |
the terms of the Non-Disclosure Agreement between Nokia and Licensee |
|
221 |
conflict with the terms of this Section 8, this Section 8 shall be |
|
222 |
controlling over the terms of the Non-Disclosure Agreement. |
|
223 |
|
|
224 |
|
|
225 |
10. GENERAL PROVISIONS |
|
226 |
|
|
227 |
10.1 No Assignment |
|
228 |
|
|
229 |
Licensee shall not be entitled to assign or transfer all or any of its |
|
230 |
rights, benefits and obligations under this Agreement without the |
|
231 |
prior written consent of Nokia, which shall not be unreasonably |
|
232 |
withheld. |
|
233 |
|
|
234 |
10.2 Termination |
|
235 |
|
|
236 |
Nokia may terminate the Agreement at any time immediately upon written |
|
237 |
notice by Nokia to Licensee if Licensee breaches this Agreement. |
|
238 |
|
|
239 |
Upon termination of this Agreement, Licensee shall return to Nokia all |
|
240 |
copies of Licensed Software that were supplied by Nokia. All other |
|
241 |
copies of Licensed Software in the possession or control of Licensee |
|
242 |
must be erased or destroyed. An officer of Licensee must promptly |
|
243 |
deliver to Nokia a written confirmation that this has occurred. |
|
244 |
|
|
245 |
10.3 Surviving Sections |
|
246 |
|
|
247 |
Any terms and conditions that by their nature or otherwise reasonably |
|
248 |
should survive a cancellation or termination of this Agreement shall |
|
249 |
also be deemed to survive. Such terms and conditions include, but are |
|
250 |
not limited to the following Sections: 2, 5, 6, 7, 8, 9, 10.2, 10.3, |
|
251 |
10.4, 10.5, 10.6, 10.7, and 10.8 of this Agreement. |
|
252 |
|
|
253 |
10.4 Entire Agreement |
|
254 |
|
|
255 |
This Agreement constitutes the complete agreement between the parties |
|
256 |
and supersedes all prior or contemporaneous discussions, |
|
257 |
representations, and proposals, written or oral, with respect to the |
|
258 |
subject matters discussed herein, with the exception of the |
|
259 |
non-disclosure agreement executed by the parties in connection with |
|
260 |
this Agreement ("Non-Disclosure Agreement"), if any, shall be subject |
|
261 |
to Section 8. No modification of this Agreement shall be effective |
|
262 |
unless contained in a writing executed by an authorized representative |
|
263 |
of each party. No term or condition contained in Licensee's purchase |
|
264 |
order shall apply unless expressly accepted by Nokia in writing. If |
|
265 |
any provision of the Agreement is found void or unenforceable, the |
|
266 |
remainder shall remain valid and enforceable according to its |
|
267 |
terms. If any remedy provided is determined to have failed for its |
|
268 |
essential purpose, all limitations of liability and exclusions of |
|
269 |
damages set forth in this Agreement shall remain in effect. |
|
270 |
|
|
271 |
10.5 Export Control |
|
272 |
|
|
273 |
Licensee acknowledges that the Licensed Software may be subject to |
|
274 |
export control restrictions of various countries. Licensee shall fully |
|
275 |
comply with all applicable export license restrictions and |
|
276 |
requirements as well as with all laws and regulations relating to the |
|
277 |
importation of the Licensed Software and shall procure all necessary |
|
278 |
governmental authorizations, including without limitation, all |
|
279 |
necessary licenses, approvals, permissions or consents, where |
|
280 |
necessary for the re-exportation of the Licensed Software., |
|
281 |
|
|
282 |
10.6 Governing Law and Legal Venue |
|
283 |
|
|
284 |
This Agreement shall be governed by and construed in accordance with |
|
285 |
the federal laws of the United States of America and the internal laws |
|
286 |
of the State of New York without given effect to any choice of law |
|
287 |
rule that would result in the application of the laws of any other |
|
288 |
jurisdiction. The United Nations Convention on Contracts for the |
|
289 |
International Sale of Goods (CISG) shall not apply. Each Party (a) |
|
290 |
hereby irrevocably submits itself to and consents to the jurisdiction |
|
291 |
of the United States District Court for the Southern District of New |
|
292 |
York (or if such court lacks jurisdiction, the state courts of the |
|
293 |
State of New York) for the purposes of any action, claim, suit or |
|
294 |
proceeding between the Parties in connection with any controversy, |
|
295 |
claim, or dispute arising out of or relating to this Agreement; and |
|
296 |
(b) hereby waives, and agrees not to assert by way of motion, as a |
|
297 |
defense or otherwise, in any such action, claim, suit or proceeding, |
|
298 |
any claim that is not personally subject to the jurisdiction of such |
|
299 |
court(s), that the action, claim, suit or proceeding is brought in an |
|
300 |
inconvenient forum or that the venue of the action, claim, suit or |
|
301 |
proceeding is improper. Notwithstanding the foregoing, nothing in |
|
302 |
this Section 9.6 is intended to, or shall be deemed to, constitute a |
|
303 |
submission or consent to, or selection of, jurisdiction, forum or |
|
304 |
venue for any action for patent infringement, whether or not such |
|
305 |
action relates to this Agreement. |
|
306 |
|
|
307 |
10.7 No Implied License |
|
308 |
|
|
309 |
There are no implied licenses or other implied rights granted under |
|
310 |
this Agreement, and all rights, save for those expressly granted |
|
311 |
hereunder, shall remain with Nokia and its licensors. In addition, no |
|
312 |
licenses or immunities are granted to the combination of the Licensed |
|
313 |
Software with any other software or hardware not delivered by Nokia |
|
314 |
under this Agreement. |
|
315 |
|
|
316 |
10.8 Government End Users |
|
317 |
|
|
318 |
A "U.S. Government End User" shall mean any agency or entity of the |
|
319 |
government of the United States. The following shall apply if Licensee |
|
320 |
is a U.S. Government End User. The Licensed Software is a "commercial |
|
321 |
item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), |
|
322 |
consisting of "commercial computer software" and "commercial computer |
|
323 |
software documentation," as such terms are used in 48 C.F.R. 12.212 |
|
324 |
(Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 |
|
325 |
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government |
|
326 |
End Users acquire the Licensed Software with only those rights set |
|
327 |
forth herein. The Licensed Software (including related documentation) |
|
328 |
is provided to U.S. Government End Users: (a) only as a commercial |
|
329 |
end item; and (b) only pursuant to this Agreement. |
|
330 |
|
|
331 |
|
|
332 |
|
|
333 |
|
|
334 |
|
|
335 |
TECHNOLOGY PREVIEW LICENSE AGREEMENT: Rest of the World |
|
336 |
Agreement version 2.3 |
|
337 |
|
|
338 |
This Technology Preview License Agreement ("Agreement") is a legal |
|
339 |
agreement between Nokia Corporation ("Nokia"), with its registered |
|
340 |
office at Keilalahdentie 4, 02150 Espoo, Finland and you (either an |
|
341 |
individual or a legal entity) ("Licensee") for the Licensed Software |
|
342 |
(as defined below). |
|
343 |
|
|
344 |
1. DEFINITIONS |
|
345 |
|
|
346 |
"Affiliate" of a Party shall mean an entity (i) which is directly or |
|
347 |
indirectly controlling such Party; (ii) which is under the same direct |
|
348 |
or indirect ownership or control as such Party; or (iii) which is |
|
349 |
directly or indirectly owned or controlled by such Party. For these |
|
350 |
purposes, an entity shall be treated as being controlled by another if |
|
351 |
that other entity has fifty percent (50 %) or more of the votes in |
|
352 |
such entity, is able to direct its affairs and/or to control the |
|
353 |
composition of its board of directors or equivalent body. |
|
354 |
|
|
355 |
"Term" shall mean the period of time six (6) months from the later of |
|
356 |
(a) the Effective Date; or (b) the date the Licensed Software was |
|
357 |
initially delivered to Licensee by Nokia. If no specific Effective |
|
358 |
Date is set forth in the Agreement, the Effective Date shall be deemed |
|
359 |
to be the date the Licensed Software was initially delivered to |
|
360 |
Licensee. |
|
361 |
|
|
362 |
"Licensed Software" shall mean the computer software, "online" or |
|
363 |
electronic documentation, associated media and printed materials, |
|
364 |
including the source code, example programs and the documentation |
|
365 |
delivered by Nokia to Licensee in conjunction with this Agreement. |
|
366 |
|
|
367 |
"Party" or "Parties" shall mean Licensee and/or Nokia. |
|
368 |
|
|
369 |
|
|
370 |
2. OWNERSHIP |
|
371 |
|
|
372 |
The Licensed Software is protected by copyright laws and international |
|
373 |
copyright treaties, as well as other intellectual property laws and |
|
374 |
treaties. The Licensed Software is licensed, not sold. |
|
375 |
|
|
376 |
If Licensee provides any findings, proposals, suggestions or other |
|
377 |
feedback ("Feedback") to Nokia regarding the Licensed Software, Nokia |
|
378 |
shall own all right, title and interest including the intellectual |
|
379 |
property rights in and to such Feedback, excluding however any |
|
380 |
existing patent rights of Licensee. To the extent Licensee owns or |
|
381 |
controls any patents for such Feedback Licensee hereby grants to Nokia |
|
382 |
and its Affiliates, a worldwide, perpetual, non-transferable, |
|
383 |
sublicensable, royalty-free license to (i) use, copy and modify |
|
384 |
Feedback and to create derivative works thereof, (ii) to make (and |
|
385 |
have made), use, import, sell, offer for sale, lease, dispose, offer |
|
386 |
for disposal or otherwise exploit any products or services of Nokia |
|
387 |
containing Feedback,, and (iii) sublicense all the foregoing rights to |
|
388 |
third party licensees and customers of Nokia and/or its Affiliates. |
|
389 |
|
|
390 |
|
|
391 |
3. VALIDITY OF THE AGREEMENT |
|
392 |
|
|
393 |
By installing, copying, or otherwise using the Licensed Software, |
|
394 |
Licensee agrees to be bound by the terms of this Agreement. If |
|
395 |
Licensee does not agree to the terms of this Agreement, Licensee may |
|
396 |
not install, copy, or otherwise use the Licensed Software. Upon |
|
397 |
Licensee's acceptance of the terms and conditions of this Agreement, |
|
398 |
Nokia grants Licensee the right to use the Licensed Software in the |
|
399 |
manner provided below. |
|
400 |
|
|
401 |
|
|
402 |
4. LICENSES |
|
403 |
|
|
404 |
4.1 Using and Copying |
|
405 |
|
|
406 |
Nokia grants to Licensee a non-exclusive, non-transferable, |
|
407 |
time-limited license to use and copy the Licensed Software for sole |
|
408 |
purpose of evaluating and testing the Licensed Software during the |
|
409 |
Term. |
|
410 |
|
|
411 |
Licensee may install copies of the Licensed Software on an unlimited |
|
412 |
number of computers provided that (a) if an individual, only such |
|
413 |
individual; or (b) if a legal entity only its employees; use the |
|
414 |
Licensed Software for the authorized purposes. |
|
415 |
|
|
416 |
4.2 No Distribution or Modifications |
|
417 |
|
|
418 |
Licensee may not disclose, modify, sell, market, commercialise, |
|
419 |
distribute, loan, rent, lease, or license the Licensed Software or any |
|
420 |
copy of it or use the Licensed Software for any purpose that is not |
|
421 |
expressly granted in this Section 4. Licensee may not alter or remove |
|
422 |
any details of ownership, copyright, trademark or other property right |
|
423 |
connected with the Licensed Software. Licensee may not distribute any |
|
424 |
software statically or dynamically linked with the Licensed Software. |
|
425 |
|
|
426 |
4.3 No Technical Support |
|
427 |
|
|
428 |
Nokia has no obligation to furnish Licensee with any technical support |
|
429 |
whatsoever. Any such support is subject to separate agreement between |
|
430 |
the Parties. |
|
431 |
|
|
432 |
|
|
433 |
5. PRE-RELEASE CODE |
|
434 |
|
|
435 |
The Licensed Software contains pre-release code that is not at the |
|
436 |
level of performance and compatibility of a final, generally |
|
437 |
available, product offering. The Licensed Software may not operate |
|
438 |
correctly and may be substantially modified prior to the first |
|
439 |
commercial product release, if any. Nokia is not obligated to make |
|
440 |
this or any later version of the Licensed Software commercially |
|
441 |
available. The License Software is "Not for Commercial Use" and may |
|
442 |
only be used for the purposes described in Section 4. The Licensed |
|
443 |
Software may not be used in a live operating environment where it may |
|
444 |
be relied upon to perform in the same manner as a commercially |
|
445 |
released product or with data that has not been sufficiently backed |
|
446 |
up. |
|
447 |
|
|
448 |
|
|
449 |
6. THIRD PARTY SOFTWARE |
|
450 |
|
|
451 |
The Licensed Software may provide links to third party libraries or |
|
452 |
code (collectively "Third Party Software") to implement various |
|
453 |
functions. Third Party Software does not comprise part of the |
|
454 |
Licensed Software. In some cases, access to Third Party Software may |
|
455 |
be included along with the Licensed Software delivery as a convenience |
|
456 |
for development and testing only. Such source code and libraries may |
|
457 |
be listed in the ".../src/3rdparty" source tree delivered with the |
|
458 |
Licensed Software or documented in the Licensed Software where the |
|
459 |
Third Party Software is used, as may be amended from time to time, do |
|
460 |
not comprise the Licensed Software. Licensee acknowledges (1) that |
|
461 |
some part of Third Party Software may require additional licensing of |
|
462 |
copyright and patents from the owners of such, and (2) that |
|
463 |
distribution of any of the Licensed Software referencing any portion |
|
464 |
of a Third Party Software may require appropriate licensing from such |
|
465 |
third parties. |
|
466 |
|
|
467 |
|
|
468 |
7. LIMITED WARRANTY AND WARRANTY DISCLAIMER |
|
469 |
|
|
470 |
The Licensed Software is licensed to Licensee "as is". To the maximum |
|
471 |
extent permitted by applicable law, Nokia on behalf of itself and its |
|
472 |
suppliers, disclaims all warranties and conditions, either express or |
|
473 |
implied, including, but not limited to, implied warranties of |
|
474 |
merchantability, fitness for a particular purpose, title and |
|
475 |
non-infringement with regard to the Licensed Software. |
|
476 |
|
|
477 |
|
|
478 |
8. LIMITATION OF LIABILITY |
|
479 |
|
|
480 |
If, Nokia's warranty disclaimer notwithstanding, Nokia is held liable |
|
481 |
to Licensee, whether in contract, tort or any other legal theory, |
|
482 |
based on the Licensed Software, Nokia's entire liability to Licensee |
|
483 |
and Licensee's exclusive remedy shall be, at Nokia's option, either |
|
484 |
(A) return of the price Licensee paid for the Licensed Software, or |
|
485 |
(B) repair or replacement of the Licensed Software, provided Licensee |
|
486 |
returns to Nokia all copies of the Licensed Software as originally |
|
487 |
delivered to Licensee. Nokia shall not under any circumstances be |
|
488 |
liable to Licensee based on failure of the Licensed Software if the |
|
489 |
failure resulted from accident, abuse or misapplication, nor shall |
|
490 |
Nokia under any circumstances be liable for special damages, punitive |
|
491 |
or exemplary damages, damages for loss of profits or interruption of |
|
492 |
business or for loss or corruption of data. Any award of damages from |
|
493 |
Nokia to Licensee shall not exceed the total amount Licensee has paid |
|
494 |
to Nokia in connection with this Agreement. |
|
495 |
|
|
496 |
|
|
497 |
9. CONFIDENTIALITY |
|
498 |
|
|
499 |
Each party acknowledges that during the Term of this Agreement it |
|
500 |
shall have access to information about the other party's business, |
|
501 |
business methods, business plans, customers, business relations, |
|
502 |
technology, and other information, including the terms of this |
|
503 |
Agreement, that is confidential and of great value to the other party, |
|
504 |
and the value of which would be significantly reduced if disclosed to |
|
505 |
third parties (the "Confidential Information"). Accordingly, when a |
|
506 |
party (the "Receiving Party") receives Confidential Information from |
|
507 |
another party (the "Disclosing Party"), the Receiving Party shall, and |
|
508 |
shall obligate its employees and agents and employees and agents of |
|
509 |
its Affiliates to: (i) maintain the Confidential Information in strict |
|
510 |
confidence; (ii) not disclose the Confidential Information to a third |
|
511 |
party without the Disclosing Party's prior written approval; and (iii) |
|
512 |
not, directly or indirectly, use the Confidential Information for any |
|
513 |
purpose other than for exercising its rights and fulfilling its |
|
514 |
responsibilities pursuant to this Agreement. Each party shall take |
|
515 |
reasonable measures to protect the Confidential Information of the |
|
516 |
other party, which measures shall not be less than the measures taken |
|
517 |
by such party to protect its own confidential and proprietary |
|
518 |
information. |
|
519 |
|
|
520 |
"Confidential Information" shall not include information that (a) is |
|
521 |
or becomes generally known to the public through no act or omission of |
|
522 |
the Receiving Party; (b) was in the Receiving Party's lawful |
|
523 |
possession prior to the disclosure hereunder and was not subject to |
|
524 |
limitations on disclosure or use; (c) is developed by the Receiving |
|
525 |
Party without access to the Confidential Information of the Disclosing |
|
526 |
Party or by persons who have not had access to the Confidential |
|
527 |
Information of the Disclosing Party as proven by the written records |
|
528 |
of the Receiving Party; (d) is lawfully disclosed to the Receiving |
|
529 |
Party without restrictions, by a third party not under an obligation |
|
530 |
of confidentiality; or (e) the Receiving Party is legally compelled to |
|
531 |
disclose the information, in which case the Receiving Party shall |
|
532 |
assert the privileged and confidential nature of the information and |
|
533 |
cooperate fully with the Disclosing Party to protect against and |
|
534 |
prevent disclosure of any Confidential Information and to limit the |
|
535 |
scope of disclosure and the dissemination of disclosed Confidential |
|
536 |
Information by all legally available means. |
|
537 |
|
|
538 |
The obligations of the Receiving Party under this Section shall |
|
539 |
continue during the Initial Term and for a period of five (5) years |
|
540 |
after expiration or termination of this Agreement. To the extent that |
|
541 |
the terms of the Non-Disclosure Agreement between Nokia and Licensee |
|
542 |
conflict with the terms of this Section 8, this Section 8 shall be |
|
543 |
controlling over the terms of the Non-Disclosure Agreement. |
|
544 |
|
|
545 |
|
|
546 |
10. GENERAL PROVISIONS |
|
547 |
|
|
548 |
10.1 No Assignment |
|
549 |
|
|
550 |
Licensee shall not be entitled to assign or transfer all or any of its |
|
551 |
rights, benefits and obligations under this Agreement without the |
|
552 |
prior written consent of Nokia, which shall not be unreasonably |
|
553 |
withheld. |
|
554 |
|
|
555 |
10.2 Termination |
|
556 |
|
|
557 |
Nokia may terminate the Agreement at any time immediately upon written |
|
558 |
notice by Nokia to Licensee if Licensee breaches this Agreement. |
|
559 |
|
|
560 |
Upon termination of this Agreement, Licensee shall return to Nokia all |
|
561 |
copies of Licensed Software that were supplied by Nokia. All other |
|
562 |
copies of Licensed Software in the possession or control of Licensee |
|
563 |
must be erased or destroyed. An officer of Licensee must promptly |
|
564 |
deliver to Nokia a written confirmation that this has occurred. |
|
565 |
|
|
566 |
10.3 Surviving Sections |
|
567 |
|
|
568 |
Any terms and conditions that by their nature or otherwise reasonably |
|
569 |
should survive a cancellation or termination of this Agreement shall |
|
570 |
also be deemed to survive. Such terms and conditions include, but are |
|
571 |
not limited to the following Sections: 2, 5, 6, 7, 8, 9, 10.2, 10.3, |
|
572 |
10.4, 10.5, 10.6, 10.7, and 10.8 of this Agreement. |
|
573 |
|
|
574 |
10.4 Entire Agreement |
|
575 |
|
|
576 |
This Agreement constitutes the complete agreement between the parties |
|
577 |
and supersedes all prior or contemporaneous discussions, |
|
578 |
representations, and proposals, written or oral, with respect to the |
|
579 |
subject matters discussed herein, with the exception of the |
|
580 |
non-disclosure agreement executed by the parties in connection with |
|
581 |
this Agreement ("Non-Disclosure Agreement"), if any, shall be subject |
|
582 |
to Section 8. No modification of this Agreement shall be effective |
|
583 |
unless contained in a writing executed by an authorized representative |
|
584 |
of each party. No term or condition contained in Licensee's purchase |
|
585 |
order shall apply unless expressly accepted by Nokia in writing. If |
|
586 |
any provision of the Agreement is found void or unenforceable, the |
|
587 |
remainder shall remain valid and enforceable according to its |
|
588 |
terms. If any remedy provided is determined to have failed for its |
|
589 |
essential purpose, all limitations of liability and exclusions of |
|
590 |
damages set forth in this Agreement shall remain in effect. |
|
591 |
|
|
592 |
10.5 Export Control |
|
593 |
|
|
594 |
Licensee acknowledges that the Licensed Software may be subject to |
|
595 |
export control restrictions of various countries. Licensee shall fully |
|
596 |
comply with all applicable export license restrictions and |
|
597 |
requirements as well as with all laws and regulations relating to the |
|
598 |
importation of the Licensed Software and shall procure all necessary |
|
599 |
governmental authorizations, including without limitation, all |
|
600 |
necessary licenses, approvals, permissions or consents, where |
|
601 |
necessary for the re-exportation of the Licensed Software., |
|
602 |
|
|
603 |
10.6 Governing Law and Legal Venue |
|
604 |
|
|
605 |
This Agreement shall be construed and interpreted in accordance with |
|
606 |
the laws of Finland, excluding its choice of law provisions. Any |
|
607 |
disputes arising out of or relating to this Agreement shall be |
|
608 |
resolved in arbitration under the Rules of Arbitration of the Chamber |
|
609 |
of Commerce of Helsinki, Finland. The arbitration tribunal shall |
|
610 |
consist of one (1), or if either Party so requires, of three (3), |
|
611 |
arbitrators. The award shall be final and binding and enforceable in |
|
612 |
any court of competent jurisdiction. The arbitration shall be held in |
|
613 |
Helsinki, Finland and the process shall be conducted in the English |
|
614 |
language. |
|
615 |
|
|
616 |
10.7 No Implied License |
|
617 |
|
|
618 |
There are no implied licenses or other implied rights granted under |
|
619 |
this Agreement, and all rights, save for those expressly granted |
|
620 |
hereunder, shall remain with Nokia and its licensors. In addition, no |
|
621 |
licenses or immunities are granted to the combination of the Licensed |
|
622 |
Software with any other software or hardware not delivered by Nokia |
|
623 |
under this Agreement. |
|
624 |
|
|
625 |
10.8 Government End Users |
|
626 |
|
|
627 |
A "U.S. Government End User" shall mean any agency or entity of the |
|
628 |
government of the United States. The following shall apply if Licensee |
|
629 |
is a U.S. Government End User. The Licensed Software is a "commercial |
|
630 |
item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), |
|
631 |
consisting of "commercial computer software" and "commercial computer |
|
632 |
software documentation," as such terms are used in 48 C.F.R. 12.212 |
|
633 |
(Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 |
|
634 |
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government |
|
635 |
End Users acquire the Licensed Software with only those rights set |
|
636 |
forth herein. The Licensed Software (including related documentation) |
|
637 |
is provided to U.S. Government End Users: (a) only as a commercial |
|
638 |
end item; and (b) only pursuant to this Agreement. |
|
639 |
|
|
640 |
|
|
641 |
|
|
642 |
|