| EVALUATION LICENSE AGREEMENT |
| Agreement version 2.0 |
| |
| This Evaluation License Agreement ("Agreement") is a legal agreement |
| between Nokia Corporation ("Nokia"), with its registered office at |
| Keilalahdentie 4, 02150 Espoo, Finland and you (either an individual |
| or a legal entity) ("Licensee") for the Licensed Software. |
| |
| 1.DEFINITIONS |
| |
| "Affiliate" of a Party shall mean an entity (i) which is directly or |
| indirectly controlling such Party; (ii) which is under the same direct |
| or indirect ownership or control as such Party; or (iii) which is |
| directly or indirectly owned or controlled by such Party. For these |
| purposes, an entity shall be treated as being controlled by another if |
| that other entity has fifty percent (50 %) or more of the votes in |
| such entity, is able to direct its affairs and/or to control the |
| composition of its board of directors or equivalent body. |
| |
| "Term" shall mean the period of time thirty (30) days from the later |
| of (a) the Effective Date; or (b) the date the Licensed Software was |
| initially delivered to Licensee by Nokia. If no specific Effective |
| Date is set forth in the Agreement, the Effective Date shall be deemed |
| to be the date the Licensed Software was initially delivered to |
| Licensee. |
| |
| "Licensed Software" shall mean the computer software, "online" or |
| electronic documentation, associated media and printed materials, |
| including the source code, example programs and the documentation |
| delivered by Nokia to Licensee in conjunction with this Agreement. |
| |
| "Party or Parties" shall mean Licensee and/or Nokia. |
| |
| |
| 2.OWNERSHIP |
| |
| The Licensed Software is protected by copyright laws and international |
| copyright treaties, as well as other intellectual property laws and |
| treaties. The Licensed Software is licensed, not sold. |
| |
| If Licensee provides any findings, proposals, suggestions or other |
| feedback ("Feedback") to Nokia regarding the Licensed Software, Nokia |
| shall own all right, title and interest including the intellectual |
| property rights in and to such Feedback, excluding however any |
| existing patent rights of Licensee. To the extent Licensee owns or |
| controls any patents for such Feedback Licensee hereby grants to Nokia |
| and its Affiliates, a worldwide, perpetual, non-transferable, |
| sublicensable, royalty-free license to (i) use, copy and modify |
| Feedback and to create derivative works thereof, (ii) to make (and |
| have made), use, import, sell, offer for sale, lease, dispose, offer |
| for disposal or otherwise exploit any products or services of Nokia |
| containing Feedback,, and (iii) sublicense all the foregoing rights to |
| third party licensees and customers of Nokia and/or its Affiliates. |
| |
| |
| 3.VALIDITY OF THE AGREEMENT |
| |
| By installing, copying, or otherwise using the Licensed Software, |
| Licensee agrees to be bound by the terms of this Agreement. If |
| Licensee does not agree to the terms of this Agreement, Licensee may |
| not install, copy, or otherwise use the Licensed Software. Upon |
| Licensee's acceptance of the terms and conditions of this Agreement, |
| Nokia grants Licensee the right to use the Licensed Software in the |
| manner provided below. |
| |
| |
| 4.LICENSES |
| |
| 4.1.Using and Copying |
| |
| Nokia grants to Licensee a non-exclusive, non-transferable, |
| time-limited license to use and copy the Licensed Software for sole |
| purpose of evaluating the Licensed Software during the Term. |
| |
| Licensee may install copies of the Licensed Software on an unlimited |
| number of computers provided that (a) if an individual, only such |
| individual; or (b) if a legal entity only its employees; use the |
| Licensed Software for the authorized purposes. |
| |
| 4.2.No Distribution or Modifications |
| |
| Licensee may not disclose, modify, sell, market, commercialise, |
| distribute, loan, rent, lease, or license the Licensed Software or any |
| copy of it or use the Licensed Software for any purpose that is not |
| expressly granted in this Section 4. Licensee may not alter or remove |
| any details of ownership, copyright, trademark or other property right |
| connected with the Licensed Software. Licensee may not distribute any |
| software statically or dynamically linked with the Licensed Software. |
| |
| 4.3.No Technical Support |
| |
| Nokia has no obligation to furnish Licensee with any technical support |
| whatsoever. Any such support is subject to separate agreement between |
| the Parties. |
| |
| |
| 5.THIRD PARTY SOFTWARE |
| |
| The Licensed Software may provide links to third party libraries or |
| code (collectively "Third Party Software") to implement various |
| functions. Third Party Software does not comprise part of the |
| Licensed Software. In some cases, access to Third Party Software may |
| be included along with the Licensed Software delivery as a convenience |
| for development and testing only. Such source code and libraries may |
| be listed in the ".../src/3rdparty" source tree delivered with the |
| Licensed Software or documented in the Licensed Software where the |
| Third Party Software is used, as may be amended from time to time, do |
| not comprise the Licensed Software. Licensee acknowledges (1) that |
| some part of Third Party Software may require additional licensing of |
| copyright and patents from the owners of such, and (2) that |
| distribution of any of the Licensed Software referencing any portion |
| of a Third Party Software may require appropriate licensing from such |
| third parties. |
| |
| |
| 6.Limited Warranty and Warranty Disclaimer |
| |
| The Licensed Software is licensed to Licensee "as is". To the maximum |
| extent permitted by applicable law, Nokia on behalf of itself and its |
| suppliers, disclaims all warranties and conditions, either express or |
| implied, including, but not limited to, implied warranties of |
| merchantability, fitness for a particular purpose, title and |
| non-infringement with regard to the Licensed Software. |
| |
| |
| 7.Limitation of Liability |
| |
| If, Nokia's warranty disclaimer notwithstanding, Nokia is held liable |
| to Licensee, whether in contract, tort or any other legal theory, |
| based on the Licensed Software, Nokia's entire liability to Licensee |
| and Licensee's exclusive remedy shall be, at Nokia's option, either |
| (A) return of the price Licensee paid for the Licensed Software, or |
| (B) repair or replacement of the Licensed Software, provided Licensee |
| returns to Nokia all copies of the Licensed Software as originally |
| delivered to Licensee. Nokia shall not under any circumstances be |
| liable to Licensee based on failure of the Licensed Software if the |
| failure resulted from accident, abuse or misapplication, nor shall |
| Nokia under any circumstances be liable for special damages, punitive |
| or exemplary damages, damages for loss of profits or interruption of |
| business or for loss or corruption of data. Any award of damages from |
| Nokia to Licensee shall not exceed the total amount Licensee has paid |
| to Nokia in connection with this Agreement. |
| |
| |
| 8. CONFIDENTIALITY |
| |
| Each party acknowledges that during the Term of this Agreement it |
| shall have access to information about the other party's business, |
| business methods, business plans, customers, business relations, |
| technology, and other information, including the terms of this |
| Agreement, that is confidential and of great value to the other party, |
| and the value of which would be significantly reduced if disclosed to |
| third parties (the "Confidential Information"). Accordingly, when a |
| party (the "Receiving Party") receives Confidential Information from |
| another party (the "Disclosing Party"), the Receiving Party shall, and |
| shall obligate its employees and agents and employees and agents of |
| its Affiliates to: (i) maintain the Confidential Information in strict |
| confidence; (ii) not disclose the Confidential Information to a third |
| party without the Disclosing Party's prior written approval; and (iii) |
| not, directly or indirectly, use the Confidential Information for any |
| purpose other than for exercising its rights and fulfilling its |
| responsibilities pursuant to this Agreement. Each party shall take |
| reasonable measures to protect the Confidential Information of the |
| other party, which measures shall not be less than the measures taken |
| by such party to protect its own confidential and proprietary |
| information. |
| |
| "Confidential Information" shall not include information that (a) is |
| or becomes generally known to the public through no act or omission of |
| the Receiving Party; (b) was in the Receiving Party's lawful |
| possession prior to the disclosure hereunder and was not subject to |
| limitations on disclosure or use; (c) is developed by the Receiving |
| Party without access to the Confidential Information of the Disclosing |
| Party or by persons who have not had access to the Confidential |
| Information of the Disclosing Party as proven by the written records |
| of the Receiving Party; (d) is lawfully disclosed to the Receiving |
| Party without restrictions, by a third party not under an obligation |
| of confidentiality; or (e) the Receiving Party is legally compelled to |
| disclose the information, in which case the Receiving Party shall |
| assert the privileged and confidential nature of the information and |
| cooperate fully with the Disclosing Party to protect against and |
| prevent disclosure of any Confidential Information and to limit the |
| scope of disclosure and the dissemination of disclosed Confidential |
| Information by all legally available means. |
| |
| The obligations of the Receiving Party under this Section shall |
| continue during the Initial Term and for a period of five (5) years |
| after expiration or termination of this Agreement. To the extent that |
| the terms of the Non-Disclosure Agreement between Nokia and Licensee |
| conflict with the terms of this Section 8, this Section 8 shall be |
| controlling over the terms of the Non-Disclosure Agreement. |
| |
| |
| 9. GENERAL PROVISIONS |
| |
| 9.1.No Assignment |
| |
| Licensee shall not be entitled to assign or transfer all or any of its |
| rights, benefits and obligations under this Agreement without the |
| prior written consent of Nokia, which shall not be unreasonably |
| withheld. |
| |
| 9.2.Termination |
| |
| Nokia may terminate the Agreement at any time immediately upon written |
| notice by Nokia to Licensee if Licensee breaches this Agreement. |
| |
| Upon termination of this Agreement, Licensee shall return to Nokia all |
| copies of Licensed Software that were supplied by Nokia. All other |
| copies of Licensed Software in the possession or control of Licensee |
| must be erased or destroyed. An officer of Licensee must promptly |
| deliver to Nokia a written confirmation that this has occurred. |
| |
| 9.3.Surviving Sections |
| |
| Any terms and conditions that by their nature or otherwise reasonably |
| should survive a cancellation or termination of this Agreement shall |
| also be deemed to survive. Such terms and conditions include, but are |
| not limited to the following Sections: 2, 5, 6, 7, 8, 9.2, 9.3, 9.4, |
| 9.5, 9.6, 9.7, and 9.8 of this Agreement. |
| |
| 9.4.Entire Agreement |
| |
| This Agreement constitutes the complete agreement between the parties |
| and supersedes all prior or contemporaneous discussions, |
| representations, and proposals, written or oral, with respect to the |
| subject matters discussed herein, with the exception of the |
| non-disclosure agreement executed by the parties in connection with |
| this Agreement ("Non-Disclosure Agreement"), if any, shall be subject |
| to Section 8. No modification of this Agreement shall be effective |
| unless contained in a writing executed by an authorized representative |
| of each party. No term or condition contained in Licensee's purchase |
| order shall apply unless expressly accepted by Nokia in writing. If |
| any provision of the Agreement is found void or unenforceable, the |
| remainder shall remain valid and enforceable according to its |
| terms. If any remedy provided is determined to have failed for its |
| essential purpose, all limitations of liability and exclusions of |
| damages set forth in this Agreement shall remain in effect. |
| |
| 9.5.Export Control |
| |
| Licensee acknowledges that the Licensed Software may be subject to |
| export control restrictions of various countries. Licensee shall |
| fully comply with all applicable export license restrictions and |
| requirements as well as with all laws and regulations relating to the |
| importation of the Licensed Software and shall procure all necessary |
| governmental authorizations, including without limitation, all |
| necessary licenses, approvals, permissions or consents, where |
| necessary for the re-exportation of the Licensed Software., |
| |
| 9.6.Governing Law and Legal Venue |
| |
| This Agreement shall be construed and interpreted in accordance with |
| the laws of Finland, excluding its choice of law provisions. Any |
| disputes arising out of or relating to this Agreement shall be |
| resolved in arbitration under the Rules of Arbitration of the Chamber |
| of Commerce of Helsinki, Finland. The arbitration tribunal shall |
| consist of one (1), or if either Party so requires, of three (3), |
| arbitrators. The award shall be final and binding and enforceable in |
| any court of competent jurisdiction. The arbitration shall be held in |
| Helsinki, Finland and the process shall be conducted in the English |
| language. |
| |
| 9.7.No Implied License |
| |
| There are no implied licenses or other implied rights granted under |
| this Agreement, and all rights, save for those expressly granted |
| hereunder, shall remain with Nokia and its licensors. In addition, no |
| licenses or immunities are granted to the combination of the Licensed |
| Software with any other software or hardware not delivered by Nokia |
| under this Agreement. |
| |
| 9.8.Government End Users |
| |
| A "U.S. Government End User" shall mean any agency or entity of the |
| government of the United States. The following shall apply if |
| Licensee is a U.S. Government End User. The Licensed Software is a |
| "commercial item," as that term is defined in 48 C.F.R. 2.101 |
| (Oct. 1995), consisting of "commercial computer software" and |
| "commercial computer software documentation," as such terms are used |
| in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 |
| and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all |
| U.S. Government End Users acquire the Licensed Software with only |
| those rights set forth herein. The Licensed Software (including |
| related documentation) is provided to U.S. Government End Users: (a) |
| only as a commercial end item; and (b) only pursuant to this |
| Agreement. |