LIMITED LICENSE AGREEMENT FOR DEVELOPERS ("Agreement")
with respect to
Terms and Conditions
You are entering into this Agreement on behalf of the company, partnership or business that you represent.
Please read this Agreement carefully. This sets out the terms under which the Licensed Materials (as defined below) may be made available to you.
By clicking on the "I Accept" button, you agree to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not click "I Accept" and do not continue with the registration.
THIS NTR 2.x LIMITED LICENSE AGREEMENT FOR DEVELOPERS (the "Agreement") is dated on the date of clicking the "I Accept" button, and made BETWEEN:
(1) Nokia Corporation, Keilalahdentie 4, 02150 Espoo, Finland, including its Affiliates ("Nokia"); and
(2) You, a company/individual identified in the registration process of Forum Nokia (the "Licensee").
(A) Nokia is a developer and supplier of Nokia Terminal Software Platform (term defined below) to be used in various mobile handsets; and
(B) The Licensee is experienced in designing, creating, testing, manufacturing and/or supplying mobile terminals, or components thereof, or software applications relating to different terminal software platforms; and
(C) Nokia desires to grant to Licensee and the Licensee obtains the right to use certain Licensed Materials (term defined below) for the limited purpose of creating for its business certain content, services, solutions or software applications on top of a software platform known as Nokia Terminal Software Platform proprietary to Nokia and/or its licensors, as further specified below in accordance with the terms and conditions of this Agreement.
(D) The Licensed Materials may contain portions of software licensed by Symbian Software Limited, whose registered office is situated at 2-6 Boundary Row, London SE1 8HP, UK ("Symbian") or its third party licensors and which has been licensed to Nokia under a separate agreement between Nokia and Symbian.
NOW IT IS HEREBY AGREED:
In this Agreement (and where the context so admits the singular shall include the plural and vice versa):
"Affiliate" means 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 the purposes of this Agreement, an entity shall be treated as being controlled by another if that other entity; (i) has fifty percent (50%) or more of the votes in such entity; or (ii) is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
"Confidential Information" means all material and information in any form received from Nokia or its Affiliates or their business partners including, but not limited to, know-how and/or information on any technical or commercial matters, business operations, facilities, products, techniques and processes, Licensed Materials and its copies, as well as all translations of computer programs contained in the Licensed Materials to different computer programming languages and/or spoken languages.
"Licensed Materials" means certain components of Nokia Terminal Software Platform limited strictly to application programming interfaces bundled in a software package plug-in, which consists of series of functions of the Nokia Terminal Software Platform that application programmers may use to invoke functionalities of Nokia Terminal Software Platform, and possible documentation related there to, which materials may be delivered to Licensee by Nokia, together which are known as "Extensions plug-in package for S60 3rd Edition SDK for Symbian OS, for C++, MR, Version 5.43".
"Nokia Terminal Software Platform" means any Symbian operating system based software package of Nokia containing a user interface, including but not limited to S60 Platform which can be used as system architecture and product platform for the creation of various mobile terminals and the contents of which shall be determined by Nokia from time to time in Nokia's sole discretion and including any software related to such software package (which may include, without limitation, software development kits and PC Suite). For the avoidance of doubt, Nokia Terminal Software Platform shall not include Symbian operating system but may include modifications to Symbian operating system, which may be subject to the underlying rights of Symbian Software Ltd ("Symbian").
"Open Source SW License" means any license terms and conditions meeting the criteria listed at http://www.opensource.org/docs/definition.php and including, without limitation, licenses currently listed at http://opensource.org/licenses/ or which is subject to any similar license terms.
"Party" or "Parties" means Nokia, the Licensee or both, as required by the context.
2.1 Subject to Nokia having obtained all necessary licenses and/or authorizations from third parties, Nokia shall deliver the Licensed Materials within a reasonable time from the effective date of this Agreement.
3.1 Subject to the terms and conditions of this Agreement, Nokia hereby grants to the Licensee, and the Licensee accepts, a royalty-free, non-transferable (except in connection with the assignment of this Agreement under Section 11.3), non-exclusive, worldwide and limited license to use the Licensed Materials solely for the purposes of developing applications or services and/or setting their priorities in application development for Nokia Terminal Software Platform S60 3rd Edition (S60 3.0), as well as to distribute the software parts of the Licensed Materials in binary form and grant sublicense to use Licensed Materials to end users together with the Licensee's own value-added application for such value-added application's intended purpose, under the Licensee's own end user license terms and conditions protecting sufficiently Nokia's and/or its licensors intellectual property rights. The Licensee shall have no right to license Licensed Materials "as such" or in combination with Licensee's application if the Licensed Materials would constitute the primary value of the product being distributed.
In case the resulting application will be licensed under any Open Source SW License, the Licensed Materials may not be used in a manner that would cause the Licensed Materials or any parts thereof be effected by any of those Open Source SW License terms.
In case the Licensee uses any part of the Licensed Materials requiring the manufacturer capabilities, the Licensee warrants that its application has prior to the commencement of any distribution submitted to and validly passed Symbian Signed for Nokia program.
3.2 In no event may Licensee copy, export, re-export, sublicense, rent, loan, lease, disclose, sell, market, commercialise, re-license, otherwise transfer to any third party (including Licensee's Affiliates) or use or permit use of the Licensed Materials in any manner inconsistent with or not expressly permitted under this Agreement. Licensee shall not (or attempt to) itself or permit others to decompile, reverse engineer, or disassemble, derive or determine the source code (including the logic, protocols or specifications incorporated or implemented therein) of the Licensed Materials or enable any disabled logic, protocols or specifications incorporated or implemented in the Licensed Materials. 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. Also, any and all licenses with respect to Nokia or third party patents (including essential patents) are specifically excluded from the scope of this Agreement, and those licenses need to be acquired separately from Nokia or the respective right holders, as the case may be.
3.3 Licensee warrants that it shall conduct proper testing of its application(s) which reference or include any Licensed Materials on all such mobile devices for which the Licensee is applying for signature in Symbian Signed or Symbian Signed for Nokia procedures.
3.4 The Licensee acknowledges, that the Licensed Materials are on a prototype level, and may not be included at all or may not be included as such to the following releases of Nokia Terminal Software Platform or Nokia devices, and Nokia makes no binary compatibility promises with respect to Licensed Materials.
3.5 For the avoidance of any doubt, the Developer shall be solely responsible of its application developed for the Nokia Terminal Software Platform in all matters, including but not limited to of complying with all applicable laws and regulations when making, marketing and selling such applications to the end users.
Nokia and its licensors (including but not limited to Symbian) shall continue to own all right, title and interest, including copyright and all other intellectual property rights in and to the Licensed Materials and other Confidential Information. Any copies which the Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on the Licensed Materials. The Licensee specifically agrees and acknowledges that it shall include and maintain a copyright notice in any application developed with equal prominence to that given any other copyright notice as follows: "This application includes software licensed from Symbian Software Ltd © 1998-2007". The Licensee may, with the prior consent of Symbian and subject to such restrictions as Symbian may impose, use the Symbian Logo in connection with the marketing, sale and distribution of the Licensee's applications, including on such applications and the application packaging.
Unless otherwise agreed in writing between the Parties, this Agreement does not contain any technical support or maintenance services.
THE LICENSED MATERIALS AND CONFIDENTIAL INFORMATION ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND NEITHER NOKIA, ITS LICENSORS, SUPPLIERS OR AFFILIATES NOR THE TITLE AND/OR INTELLECTUAL PROPERTY RIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE LICENSED MATERIALS OR CONFIDENTIAL INFORMATION WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR ANY OTHER RIGHTS. THERE IS NO WARRANTY BY NOKIA OR BY ANY OTHER PARTY THAT THE FUNCTIONS AND SOLUTIONS CONTAINED OR OUTLINED IN THE LICENSED MATERIALS OR CONFIDENTIAL INFORMATION WILL MEET THE REQUIREMENTS OF THE LICENSEE OR WILL OPERATE UNINTERRUPTED OR ERROR-FREE. THE LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE LICENSED MATERIALS TO ACHIEVE LICENSEE'S INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT. IN THE EVENT THE WARRANTY EXCLUSION IS NOT VALID IN SOME JURISDICTION, THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE WARRANTY EXCLUSION SET FORTH IN THIS SECTION 6 SHALL BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW.
EXCEPT FOR DAMAGES CAUSED BY WILFUL ACTS OR GROSS NEGLIGENCE, IN NO EVENT SHALL NOKIA, ITS EMPLOYEES, DIRECTORS, SUPPLIERS, LICENSORS OR THEIR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED OR ANY DAMAGES ARISING OUT OF OR RELATING TO AN INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIAL INFORMATION, AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING HEREUNDER OR OUT OF THE USE OF OR INABILITY TO USE THE LICENSED MATERIALS OR CONFIDENTIAL INFORMATION, EVEN IF NOKIA OR ITS EMPLOYEES OR SUPPLIERS, LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE ABOVE LIMITATION OF LIABILITY WOULD NOT BE ENFORCEABLE, NOKIA'S, ITS EMPLOYEES', DIRECTORS' OR SUPPLIERS', LICENSORS' OR AFFILIATES' LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW.
8.1 The Licensee shall keep the Confidential Information strictly confidential and shall not disclose it to any third parties (including Licensee's Affiliates) without the prior written consent of Nokia. The Licensee shall have the right to: (i) use Confidential Information only for the purpose specified in Section 3; and (ii) copy such Confidential Information only to the extent necessary for the purposes of this Agreement. In the event a separate written consent is given to the Licensee to disclose Confidential Information to third parties or Licensee's Affiliates, the Licensee shall be responsible for the performance of their obligations as for its own. Other than stated in this Clause 8.1, the Licensee shall at all times maintain the Confidential Information together with any copies at its premises or otherwise in secure fashion and agrees to take all reasonable measures and actions to protect such Confidential Information from theft, unauthorised copying, reproduction, distribution, disclosure, dissemination and use, which measures shall be no less stringent than the measures employed by the Licensee at that time to secure and protect its own confidential and proprietary information of a similar nature. The Licensee shall restrict the access to the Confidential Information to only those of its personnel with a need to know such Confidential Information for carrying out the purpose of this Agreement. Upon its discovery of any unauthorized possession, use or disclosure of the Confidential Information attributable to Licensee, Licensee shall promptly notify Nokia of the same and shall cooperate with Nokia in every reasonable effort to regain possession and to prevent the further unauthorized use of the Confidential Information.
8.2 Confidentiality obligation shall, however, not be applied to Confidential Information which:
(i) is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the Licensee; or
(ii) was known to the Licensee prior to disclosure by Nokia as proven by the written records of the Licensee; or
(iii) is disclosed to the Licensee by a third party who did not obtain such information, directly or indirectly, from Nokia; or
(iv) was independently developed by personnel of the Licensee having no access to the Confidential Information as proven by the written records of the Licensee.
8.3 The rights and obligations of this Section 8 shall remain in force for five (5) years from the date of signing of this Agreement, or if Confidential Information is disclosed after such date, the rights and obligations of this Agreement shall remain in force for five (5) years from the disclosure.
You shall defend, indemnify and hold Nokia and its licensors harmless against any claims, damages, liabilities, losses, costs, suits or expenditures incurred by Nokia, its Affiliates, or licensors as a result of any infringement or alleged infringement of intellectual property rights of a third party caused by the development or exploitation of the Licensed Materials by the Licensee.
10.1 Nokia may terminate this Agreement immediately by notice in writing to Licensee, if:
10.1.1 Licensee has committed a material breach of this Agreement which Licensee fails to remedy within ten (10) days of receiving written notification requiring to do so; or
10.1.2 Licensee ceases to do business, become insolvent, go or are put into receivership or liquidation, passes a resolution for winding up (other than for the purpose of reconstruction or amalgamation), makes an arrangement for the benefit of its creditors, or takes or suffers any similar action in consequence of debt or any event similar to those listed above under the laws of any country outside Finland; or
10.1.3 Without prejudice to Section 10.1.1, you breach any part of Section 3, or Clause 8; or
10.1.4 Nokia has previously terminated this or similar agreement with Licensee.
10.2 Either party may terminate this Agreement at any time by sending a thirty (30) days' prior written notice to the other party.
10.3 Any termination of this Agreement (howsoever occasioned) shall be without prejudice to any other rights or remedies a party may be entitled to and shall not affect any accrued rights or liabilities of either party.
11.1 Neither Party shall be liable to the other for any delay or non-performance of its obligations caused by an impediment beyond its control, which it could not have taken into account at the time of conclusion of this Agreement and the consequences of which it could not reasonably have avoided or overcome. Events of force majeure shall include (without being limited to) war, acts of government, natural disasters, fire and explosions.
11.2 Nokia reserves the right to change these terms and conditions of use at any time without cause. Such changes will become effective as soon as they are notified to you and by continuing to use the website following such changes you will be deemed to have accepted such changes.
11.3 This Agreement together with its Appendices specified herein constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements, proposals, and communications, whether written or oral, between the Parties. Any amendments and changes to this Agreement shall only be valid if agreed in writing by both Parties. In the event of discrepancy between the content of this Agreement document and any of its Appendices, the content of this Agreement document shall prevail.
11.4 Neither Party shall have the right to assign this Agreement, or any of its rights, benefits and obligations thereof, without the prior written consent of the other Party. Nokia shall, however, be entitled to assign this Agreement or its rights under it to its Affiliate without any notice to the Licensee.
11.5 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 require, 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.
11.6 The relationship of the Parties established by this Agreement is that of independent contractors.
11.7 No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further exercise thereof or the exercise of any other right or remedy.
11.8 If any provision contained in this Agreement is declared invalid or unenforceable, in whole or in part, the remaining provisions and any partially enforceable provision shall, nevertheless, remain in full force and effect. The Parties agree to negotiate in good faith for the replacement of such provision with a valid and enforceable provision that achieves the original purpose and commercial goal of the invalid provision to the extent possible.
11.9 The Licensee acknowledges that the Licensed Materials may be subject to export restrictions of various countries. The 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 Materials.
11.10 Without restricting any rights of Nokia, clauses 4, 6, 7 and 9 confer a benefit on Symbian and are intended to be enforceable by Symbian. Subject only to the exception in this Clause, nothing in this Agreement confers or purports to confer on any third party any benefit or right to enforce any of the terms of this Agreement.
11.11 Neither Party shall use the other Party as a reference in its marketing without the prior written consent of such Party.