|
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, the |
|
9 applicable licensing terms are specified under the heading "Technology |
|
10 Preview License Agreement: Rest of the World". |
|
11 |
|
12 |
|
13 TECHNOLOGY PREVIEW LICENSE AGREEMENT: The Americas |
|
14 Agreement version 2.4 |
|
15 |
|
16 This Technology Preview License Agreement ("Agreement") is a legal |
|
17 agreement between Nokia Inc. ("Nokia"), with its registered office at |
|
18 102 Corporate Park Drive, White Plains, N.Y., U.S.A. 10604 and you (either an |
|
19 individual or a legal entity) ("Licensee") for the Licensed Software (as |
|
20 defined below). |
|
21 |
|
22 1. DEFINITIONS |
|
23 |
|
24 "Affiliate" of a Party shall mean an entity (i) which is directly or |
|
25 indirectly controlling such Party; (ii) which is under the same direct |
|
26 or indirect ownership or control as such Party; or (iii) which is |
|
27 directly or indirectly owned or controlled by such Party. For these |
|
28 purposes, an entity shall be treated as being controlled by another if |
|
29 that other entity has fifty percent (50 %) or more of the votes in such |
|
30 entity, is able to direct its affairs and/or to control the composition |
|
31 of its board of directors or equivalent body. |
|
32 |
|
33 "Applications" shall mean Licensee's software products created using the |
|
34 Licensed Software which may include portions of the Licensed Software. |
|
35 |
|
36 "Term" shall mean the period of time six (6) months from the later of |
|
37 (a) the Effective Date; or (b) the date the Licensed Software was |
|
38 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. |
|
41 |
|
42 "Licensed Software" shall mean the computer software, "online" or |
|
43 electronic documentation, associated media and printed materials, |
|
44 including the source code, example programs and the documentation |
|
45 delivered by Nokia to Licensee in conjunction with this Agreement. |
|
46 |
|
47 "Party" or "Parties" shall mean Licensee and/or Nokia. |
|
48 |
|
49 |
|
50 2. OWNERSHIP |
|
51 |
|
52 The Licensed Software is protected by copyright laws and international |
|
53 copyright treaties, as well as other intellectual property laws and |
|
54 treaties. The Licensed Software is licensed, not sold. |
|
55 |
|
56 If Licensee provides any findings, proposals, suggestions or other |
|
57 feedback ("Feedback") to Nokia regarding the Licensed Software, Nokia |
|
58 shall own all right, title and interest including the intellectual |
|
59 property rights in and to such Feedback, excluding however any existing |
|
60 patent rights of Licensee. To the extent Licensee owns or controls any |
|
61 patents for such Feedback Licensee hereby grants to Nokia and its |
|
62 Affiliates, a worldwide, perpetual, non-transferable, sublicensable, |
|
63 royalty-free license to (i) use, copy and modify Feedback and to create |
|
64 derivative works thereof, (ii) to make (and have made), use, import, |
|
65 sell, offer for sale, lease, dispose, offer for disposal or otherwise |
|
66 exploit any products or services of Nokia containing Feedback,, and |
|
67 (iii) sublicense all the foregoing rights to third party licensees and |
|
68 customers of Nokia and/or its Affiliates. |
|
69 |
|
70 |
|
71 3. VALIDITY OF THE AGREEMENT |
|
72 |
|
73 By installing, copying, or otherwise using the Licensed Software, |
|
74 Licensee agrees to be bound by the terms of this Agreement. If Licensee |
|
75 does not agree to the terms of this Agreement, Licensee may not install, |
|
76 copy, or otherwise use the Licensed Software. Upon Licensee's acceptance |
|
77 of the terms and conditions of this Agreement, Nokia grants Licensee the |
|
78 right to use the Licensed Software in the 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, time-limited |
|
86 license to use and copy the Licensed Software for sole purpose of |
|
87 designing, developing and testing Applications, and evaluating and the |
|
88 Licensed Software during the 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 The Licensed Software contains pre-release code that is not at the level |
|
114 of performance and compatibility of a final, generally available, |
|
115 product offering. The Licensed Software may not operate correctly and |
|
116 may be substantially modified prior to the first commercial product |
|
117 release, if any. Nokia is not obligated to make this or any later |
|
118 version of the Licensed Software commercially available. The License |
|
119 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 |
|
121 in a live operating environment where it may be relied upon to perform |
|
122 in the same manner as a commercially released product or with data that |
|
123 has not been sufficiently backed up. |
|
124 |
|
125 6. THIRD PARTY SOFTWARE |
|
126 |
|
127 The Licensed Software may provide links to third party libraries or code |
|
128 (collectively "Third Party Software") to implement various functions. |
|
129 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 |
|
131 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 |
|
135 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 |
|
137 Software may require additional licensing of copyright and patents from |
|
138 the owners of such, and (2) that distribution of any of the Licensed |
|
139 Software referencing any portion of a Third Party Software may require |
|
140 appropriate licensing from such third parties. |
|
141 |
|
142 |
|
143 7. LIMITED WARRANTY AND WARRANTY DISCLAIMER |
|
144 |
|
145 The Licensed Software is licensed to Licensee "as is". To the maximum |
|
146 extent permitted by applicable law, Nokia on behalf of itself and its |
|
147 suppliers, disclaims all warranties and conditions, either express or |
|
148 implied, including, but not limited to, implied warranties of |
|
149 merchantability, fitness for a particular purpose, title and |
|
150 non-infringement with regard to the Licensed Software. |
|
151 |
|
152 |
|
153 8. LIMITATION OF LIABILITY |
|
154 |
|
155 If, Nokia's warranty disclaimer notwithstanding, Nokia is held liable to |
|
156 Licensee, whether in contract, tort or any other legal theory, based on |
|
157 the Licensed Software, Nokia's entire liability to Licensee and |
|
158 Licensee's exclusive remedy shall be, at Nokia's option, either (A) |
|
159 return of the price Licensee paid for the Licensed Software, or (B) |
|
160 repair or replacement of the Licensed Software, provided Licensee |
|
161 returns to Nokia all copies of the Licensed Software as originally |
|
162 delivered to Licensee. Nokia shall not under any circumstances be liable |
|
163 to Licensee based on failure of the Licensed Software if the failure |
|
164 resulted from accident, abuse or misapplication, nor shall Nokia under |
|
165 any circumstances be liable for special damages, punitive or exemplary |
|
166 damages, damages for loss of profits or interruption of business or for |
|
167 loss or corruption of data. Any award of damages from Nokia to Licensee |
|
168 shall not exceed the total amount Licensee has paid to Nokia in |
|
169 connection with this Agreement. |
|
170 |
|
171 |
|
172 9. CONFIDENTIALITY |
|
173 |
|
174 Each party acknowledges that during the Term of this Agreement it shall |
|
175 have access to information about the other party's business, business |
|
176 methods, business plans, customers, business relations, technology, and |
|
177 other information, including the terms of this Agreement, that is |
|
178 confidential and of great value to the other party, and the value of |
|
179 which would be significantly reduced if disclosed to third parties (the |
|
180 "Confidential Information"). Accordingly, when a party (the "Receiving |
|
181 Party") receives Confidential Information from another party (the |
|
182 "Disclosing Party"), the Receiving Party shall, and shall obligate its |
|
183 employees and agents and employees and agents of its Affiliates to: (i) |
|
184 maintain the Confidential Information in strict confidence; (ii) not |
|
185 disclose the Confidential Information to a third party without the |
|
186 Disclosing Party's prior written approval; and (iii) not, directly or |
|
187 indirectly, use the Confidential Information for any purpose other than |
|
188 for exercising its rights and fulfilling its responsibilities pursuant |
|
189 to this Agreement. Each party shall take reasonable measures to protect |
|
190 the Confidential Information of the other party, which measures shall |
|
191 not be less than the measures taken by such party to protect its own |
|
192 confidential and proprietary information. |
|
193 |
|
194 "Confidential Information" shall not include information that (a) is or |
|
195 becomes generally known to the public through no act or omission of the |
|
196 Receiving Party; (b) was in the Receiving Party's lawful possession |
|
197 prior to the disclosure hereunder and was not subject to limitations on |
|
198 disclosure or use; (c) is developed by the Receiving Party without |
|
199 access to the Confidential Information of the Disclosing Party or by |
|
200 persons who have not had access to the Confidential Information of the |
|
201 Disclosing Party as proven by the written records of the Receiving |
|
202 Party; (d) is lawfully disclosed to the Receiving Party without |
|
203 restrictions, by a third party not under an obligation of |
|
204 confidentiality; or (e) the Receiving Party is legally compelled to |
|
205 disclose the information, in which case the Receiving Party shall assert |
|
206 the privileged and confidential nature of the information and cooperate |
|
207 fully with the Disclosing Party to protect against and prevent |
|
208 disclosure of any Confidential Information and to limit the scope of |
|
209 disclosure and the dissemination of disclosed Confidential Information |
|
210 by all legally available means. |
|
211 |
|
212 The obligations of the Receiving Party under this Section shall continue |
|
213 during the Initial Term and for a period of five (5) years after |
|
214 expiration or termination of this Agreement. To the extent that the |
|
215 terms of the Non-Disclosure Agreement between Nokia and Licensee |
|
216 conflict with the terms of this Section 9, this Section 9 shall be |
|
217 controlling over the terms of the Non-Disclosure Agreement. |
|
218 |
|
219 |
|
220 10. GENERAL PROVISIONS |
|
221 |
|
222 10.1 No Assignment |
|
223 |
|
224 Licensee shall not be entitled to assign or transfer all or any of its |
|
225 rights, benefits and obligations under this Agreement without the prior |
|
226 written consent of Nokia, which shall not be unreasonably withheld. |
|
227 |
|
228 10.2 Termination |
|
229 |
|
230 Nokia may terminate the Agreement at any time immediately upon written |
|
231 notice by Nokia to Licensee if Licensee breaches this Agreement. |
|
232 |
|
233 Upon termination of this Agreement, Licensee shall return to Nokia all |
|
234 copies of Licensed Software that were supplied by Nokia. All other |
|
235 copies of Licensed Software in the possession or control of Licensee |
|
236 must be erased or destroyed. An officer of Licensee must promptly |
|
237 deliver to Nokia a written confirmation that this has occurred. |
|
238 |
|
239 10.3 Surviving Sections |
|
240 |
|
241 Any terms and conditions that by their nature or otherwise reasonably |
|
242 should survive a cancellation or termination of this Agreement shall |
|
243 also be deemed to survive. Such terms and conditions include, but are |
|
244 not limited to the following Sections: 2, 5, 6, 7, 8, 9, 10.2, 10.3, 10.4, |
|
245 10.5, 10.6, 10.7, and 10.8 of this Agreement. |
|
246 |
|
247 10.4 Entire Agreement |
|
248 |
|
249 This Agreement constitutes the complete agreement between the parties |
|
250 and supersedes all prior or contemporaneous discussions, |
|
251 representations, and proposals, written or oral, with respect to the |
|
252 subject matters discussed herein, with the exception of the |
|
253 non-disclosure agreement executed by the parties in connection with this |
|
254 Agreement ("Non-Disclosure Agreement"), if any, shall be subject to |
|
255 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 |
|
259 the Agreement is found void or unenforceable, the remainder shall remain |
|
260 valid and enforceable according to its terms. If any remedy provided is |
|
261 determined to have failed for its essential purpose, all limitations of |
|
262 liability and exclusions of damages set forth in this Agreement shall |
|
263 remain in effect. |
|
264 |
|
265 10.5 Export Control |
|
266 |
|
267 Licensee acknowledges that the Licensed Software may be subject to |
|
268 export control restrictions of various countries. Licensee shall fully |
|
269 comply with all applicable export license restrictions and requirements |
|
270 as well as with all laws and regulations relating to the importation of |
|
271 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 |
|
274 re-exportation of the Licensed Software., |
|
275 |
|
276 10.6 Governing Law and Legal Venue |
|
277 |
|
278 This Agreement shall be governed by and construed in accordance with the |
|
279 federal laws of the United States of America and the internal laws of |
|
280 the State of New York without given effect to any choice of law rule |
|
281 that would result in the application of the laws of any other |
|
282 jurisdiction. The United Nations Convention on Contracts for the |
|
283 International Sale of Goods (CISG) shall not apply. Each Party (a) |
|
284 hereby irrevocably submits itself to and consents to the jurisdiction of |
|
285 the United States District Court for the Southern District of New York |
|
286 (or if such court lacks jurisdiction, the state courts of the State of |
|
287 New York) for the purposes of any action, claim, suit or proceeding |
|
288 between the Parties in connection with any controversy, claim, or |
|
289 dispute arising out of or relating to this Agreement; and (b) hereby |
|
290 waives, and agrees not to assert by way of motion, as a defense or |
|
291 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 |
|
294 that the venue of the action, claim, suit or proceeding is improper. |
|
295 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 |
|
298 infringement, whether or not such action relates to this Agreement. |
|
299 |
|
300 10.7 No Implied License |
|
301 |
|
302 There are no implied licenses or other implied rights granted under this |
|
303 Agreement, and all rights, save for those expressly granted hereunder, |
|
304 shall remain with Nokia and its licensors. In addition, no licenses or |
|
305 immunities are granted to the combination of the Licensed Software with |
|
306 any other software or hardware not delivered by Nokia under this |
|
307 Agreement. |
|
308 |
|
309 10.8 Government End Users |
|
310 |
|
311 A "U.S. Government End User" shall mean any agency or entity of the |
|
312 government of the United States. The following shall apply if Licensee |
|
313 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 |
|
317 (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 |
|
320 Licensed Software (including related documentation) is provided to U.S. |
|
321 Government End Users: (a) only as a commercial end item; and (b) only |
|
322 pursuant to this Agreement. |
|
323 |
|
324 |
|
325 |
|
326 |
|
327 |
|
328 TECHNOLOGY PREVIEW LICENSE AGREEMENT: Rest of the World |
|
329 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. |
|
626 |
|
627 |
|
628 |
|
629 |