EVALUATION LICENSE AGREEMENT | |
Agreement version 2.0 | |
This Evaluation License Agreement ("Agreement") is a legal agreement | |
between Nokia, Inc. ("Nokia"), with its registered office at 6021 | |
Connection Drive, Irving, TX 75039, U.S.A. and you (either an | |
individual or a legal entity) ("Licensee") for the Licensed Software | |
(as defined below). | |
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 governed by and construed in accordance with | |
the federal laws of the United States of America and the internal laws | |
of the State of New York without given effect to any choice of law | |
rule that would result in the application of the laws of any other | |
jurisdiction. The United Nations Convention on Contracts for the | |
International Sale of Goods (CISG) shall not apply. Each Party (a) | |
hereby irrevocably submits itself to and consents to the jurisdiction | |
of the United States District Court for the Southern District of New | |
York (or if such court lacks jurisdiction, the state courts of the | |
State of New York) for the purposes of any action, claim, suit or | |
proceeding between the Parties in connection with any controversy, | |
claim, or dispute arising out of or relating to this Agreement; and | |
(b) hereby waives, and agrees not to assert by way of motion, as a | |
defense or otherwise, in any such action, claim, suit or proceeding, | |
any claim that is not personally subject to the jurisdiction of such | |
court(s), that the action, claim, suit or proceeding is brought in an | |
inconvenient forum or that the venue of the action, claim, suit or | |
proceeding is improper. Notwithstanding the foregoing, nothing in | |
this Section 9.6 is intended to, or shall be deemed to, constitute a | |
submission or consent to, or selection of, jurisdiction, forum or | |
venue for any action for patent infringement, whether or not such | |
action relates to this Agreement. | |
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. |