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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, |
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the applicable licensing terms are specified under the heading |
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"Technology 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 2.3 |
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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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6021 Connection Drive, Irving, TX 75039, U.S.A. and you (either an |
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individual or a legal entity) ("Licensee") for the Licensed Software |
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(as defined below). |
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|
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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 |
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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 |
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such entity, is able to direct its affairs and/or to control the |
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composition of its board of directors or equivalent body. |
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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 |
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Date is set forth in the Agreement, the Effective Date shall be deemed |
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to be the date the Licensed Software was initially delivered to |
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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, |
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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 |
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existing patent rights of Licensee. To the extent Licensee owns or |
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controls any patents for such Feedback Licensee hereby grants to Nokia |
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and its Affiliates, a worldwide, perpetual, non-transferable, |
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sublicensable, royalty-free license to (i) use, copy and modify |
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Feedback and to create derivative works thereof, (ii) to make (and |
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have made), use, import, sell, offer for sale, lease, dispose, offer |
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for disposal or otherwise exploit any products or services of Nokia |
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containing Feedback,, and (iii) sublicense all the foregoing rights to |
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third party licensees and 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 |
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Licensee does not agree to the terms of this Agreement, Licensee may |
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not install, copy, or otherwise use the Licensed Software. Upon |
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Licensee's acceptance of the terms and conditions of this Agreement, |
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Nokia grants Licensee the right to use the Licensed Software in the |
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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, |
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time-limited license to use and copy the Licensed Software for sole |
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purpose of evaluating and testing the Licensed Software during the |
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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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|
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The Licensed Software contains pre-release code that is not at the |
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level of performance and compatibility of a final, generally |
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available, product offering. The Licensed Software may not operate |
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correctly and may be substantially modified prior to the first |
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commercial product release, if any. Nokia is not obligated to make |
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this or any later version of the Licensed Software commercially |
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available. The License Software is "Not for Commercial Use" and may |
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only be used for the purposes described in Section 4. The Licensed |
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Software may not be used in a live operating environment where it may |
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be relied upon to perform in the same manner as a commercially |
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released product or with data that has not been sufficiently backed |
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up. |
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|
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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 |
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code (collectively "Third Party Software") to implement various |
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functions. Third Party Software does not comprise part of the |
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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 |
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some part of Third Party Software may require additional licensing of |
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copyright and patents from the owners of such, and (2) that |
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distribution of any of the Licensed Software referencing any portion |
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of a Third Party Software may require appropriate licensing from such |
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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 |
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to Licensee, whether in contract, tort or any other legal theory, |
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based on the Licensed Software, Nokia's entire liability to Licensee |
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and Licensee's exclusive remedy shall be, at Nokia's option, either |
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(A) return of the price Licensee paid for the Licensed Software, or |
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(B) 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 |
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liable to Licensee based on failure of the Licensed Software if the |
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failure resulted from accident, abuse or misapplication, nor shall |
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Nokia under any circumstances be liable for special damages, punitive |
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or exemplary damages, damages for loss of profits or interruption of |
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business or for loss or corruption of data. Any award of damages from |
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Nokia to Licensee shall not exceed the total amount Licensee has paid |
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to Nokia in 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 |
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shall have access to information about the other party's business, |
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business methods, business plans, customers, business relations, |
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technology, and other information, including the terms of this |
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Agreement, that is confidential and of great value to the other party, |
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and the value of which would be significantly reduced if disclosed to |
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third parties (the "Confidential Information"). Accordingly, when a |
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party (the "Receiving Party") receives Confidential Information from |
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another party (the "Disclosing Party"), the Receiving Party shall, and |
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shall obligate its employees and agents and employees and agents of |
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its Affiliates to: (i) maintain the Confidential Information in strict |
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confidence; (ii) not disclose the Confidential Information to a third |
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party without the Disclosing Party's prior written approval; and (iii) |
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not, directly or indirectly, use the Confidential Information for any |
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purpose other than for exercising its rights and fulfilling its |
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responsibilities pursuant to this Agreement. Each party shall take |
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reasonable measures to protect the Confidential Information of the |
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other party, which measures shall not be less than the measures taken |
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by such party to protect its own confidential and proprietary |
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information. |
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|
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"Confidential Information" shall not include information that (a) is |
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or becomes generally known to the public through no act or omission of |
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the Receiving Party; (b) was in the Receiving Party's lawful |
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possession prior to the disclosure hereunder and was not subject to |
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limitations on disclosure or use; (c) is developed by the Receiving |
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Party without access to the Confidential Information of the Disclosing |
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Party or by persons who have not had access to the Confidential |
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Information of the Disclosing Party as proven by the written records |
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of the Receiving Party; (d) is lawfully disclosed to the Receiving |
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Party without restrictions, by a third party not under an obligation |
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of confidentiality; or (e) the Receiving Party is legally compelled to |
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disclose the information, in which case the Receiving Party shall |
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assert the privileged and confidential nature of the information and |
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cooperate fully with the Disclosing Party to protect against and |
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prevent disclosure of any Confidential Information and to limit the |
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scope of disclosure and the dissemination of disclosed Confidential |
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Information by all legally available means. |
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|
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The obligations of the Receiving Party under this Section shall |
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continue during the Initial Term and for a period of five (5) years |
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after expiration or termination of this Agreement. To the extent that |
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the terms of the Non-Disclosure Agreement between Nokia and Licensee |
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conflict with the terms of this Section 8, this Section 8 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 |
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prior written consent of Nokia, which shall not be unreasonably |
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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, |
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10.4, 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 |
| 259 |
non-disclosure agreement executed by the parties in connection with |
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this Agreement ("Non-Disclosure Agreement"), if any, shall be subject |
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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 |
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any provision of the Agreement is found void or unenforceable, the |
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remainder shall remain valid and enforceable according to its |
| 267 |
terms. If any remedy provided is determined to have failed for its |
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essential purpose, all limitations of liability and exclusions of |
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damages set forth in this Agreement shall 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 |
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requirements as well as with all laws and regulations relating to the |
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importation of the Licensed Software and shall procure all necessary |
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governmental authorizations, including without limitation, all |
| 279 |
necessary licenses, approvals, permissions or consents, where |
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necessary for the 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 |
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the federal laws of the United States of America and the internal laws |
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of the State of New York without given effect to any choice of law |
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rule that would result in the application of the laws of any other |
| 288 |
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 |
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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 |
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State of New York) for the purposes of any action, claim, suit or |
| 294 |
proceeding between the Parties in connection with any controversy, |
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claim, or dispute arising out of or relating to this Agreement; and |
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(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, |
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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 |
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venue for any action for patent infringement, whether or not such |
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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 |
| 310 |
this Agreement, and all rights, save for those expressly granted |
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hereunder, shall remain with Nokia and its licensors. In addition, no |
| 312 |
licenses or immunities are granted to the combination of the Licensed |
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Software with any other software or hardware not delivered by Nokia |
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under this 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 |
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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 |
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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. |
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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 2.3 |
| 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. |