101c47242b
Change-Id: I87b9c77327e2e32db77efb027172ccd21659e032 Reviewed-by: Iikka Eklund <iikka.eklund@digia.com>
629 lines
31 KiB
Plaintext
629 lines
31 KiB
Plaintext
TECHNOLOGY PREVIEW LICENSE AGREEMENT
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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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For individuals and/or legal entities not resident in The Americas, the
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applicable licensing terms are specified under the heading "Technology
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Preview License Agreement: Rest of the World".
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TECHNOLOGY PREVIEW LICENSE AGREEMENT: The Americas
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Agreement version 2.4
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This Technology Preview License Agreement ("Agreement")is a legal agreement
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between Digia USA, Inc. ("Digia"), with its registered office at 2350
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Mission College Blvd., Suite 1020, Santa Clara, California 95054,
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U.S.A. and you (either an individual or a legal entity) ("Licensee") for the
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Licensed Software (as defined below).
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1. DEFINITIONS
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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 such
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entity, is able to direct its affairs and/or to control the composition
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of its board of directors or equivalent body.
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"Applications" shall mean Licensee's software products created using the
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Licensed Software which may include portions of the Licensed Software.
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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 Digia. If no specific Effective Date
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is set forth in the Agreement, the Effective Date shall be deemed to be
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the date the Licensed Software was initially delivered to Licensee.
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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 Digia to Licensee in conjunction with this Agreement.
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"Party" or "Parties" shall mean Licensee and/or Digia.
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2. OWNERSHIP
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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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If Licensee provides any findings, proposals, suggestions or other
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feedback ("Feedback") to Digia regarding the Licensed Software, Digia
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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 existing
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patent rights of Licensee. To the extent Licensee owns or controls any
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patents for such Feedback Licensee hereby grants to Digia and its
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Affiliates, a worldwide, perpetual, non-transferable, sublicensable,
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royalty-free license to (i) use, copy and modify Feedback and to create
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derivative works thereof, (ii) to make (and have made), use, import,
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sell, offer for sale, lease, dispose, offer for disposal or otherwise
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exploit any products or services of Digia containing Feedback, and
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(iii) sublicense all the foregoing rights to third party licensees and
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customers of Digia and/or its Affiliates.
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3. VALIDITY OF THE AGREEMENT
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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 Licensee
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does not agree to the terms of this Agreement, Licensee may not install,
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copy, or otherwise use the Licensed Software. Upon Licensee's acceptance
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of the terms and conditions of this Agreement, Digia grants Licensee the
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right to use the Licensed Software in the manner provided below.
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4. LICENSES
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4.1. Using and Copying
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Digia grants to Licensee a non-exclusive, non-transferable, time-limited
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license to use and copy the Licensed Software for sole purpose of
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designing, developing and testing Applications, and evaluating and the
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Licensed Software during the Term.
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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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4.2 No Distribution or Modifications
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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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4.3 No Technical Support
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Digia 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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5. PRE-RELEASE CODE
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The Licensed Software contains pre-release code that is not at the level
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of performance and compatibility of a final, generally available,
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product offering. The Licensed Software may not operate correctly and
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may be substantially modified prior to the first commercial product
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release, if any. Digia is not obligated to make this or any later
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version of the Licensed Software commercially available. The License
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Software is "Not for Commercial Use" and may only be used for the
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purposes described in Section 4. The Licensed Software may not be used
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in a live operating environment where it may be relied upon to perform
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in the same manner as a commercially released product or with data that
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has not been sufficiently backed up.
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6. THIRD PARTY SOFTWARE
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The Licensed Software may provide links to third party libraries or code
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(collectively "Third Party Software") to implement various functions.
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Third Party Software does not comprise part of the Licensed Software. In
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some cases, access to Third Party Software may be included along with
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the Licensed Software delivery as a convenience for development and
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testing only. Such source code and libraries may be listed in the
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".../src/3rdparty" source tree delivered with the Licensed Software or
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documented in the Licensed Software where the Third Party Software is
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used, as may be amended from time to time, do not comprise the Licensed
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Software. Licensee acknowledges (1) that some part of Third Party
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Software may require additional licensing of copyright and patents from
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the owners of such, and (2) that distribution of any of the Licensed
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Software referencing any portion of a Third Party Software may require
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appropriate licensing from such third parties.
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7. LIMITED WARRANTY AND WARRANTY DISCLAIMER
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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, Digia 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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8. LIMITATION OF LIABILITY
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If, Digia's warranty disclaimer notwithstanding, Digia is held liable to
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Licensee, whether in contract, tort or any other legal theory, based on
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the Licensed Software, Digia's entire liability to Licensee and
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Licensee's exclusive remedy shall be, at Digia's option, either (A)
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return of the price Licensee paid for the Licensed Software, or (B)
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repair or replacement of the Licensed Software, provided Licensee
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returns to Digia all copies of the Licensed Software as originally
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delivered to Licensee. Digia shall not under any circumstances be liable
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to Licensee based on failure of the Licensed Software if the failure
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resulted from accident, abuse or misapplication, nor shall Digia under
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any circumstances be liable for special damages, punitive or exemplary
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damages, damages for loss of profits or interruption of business or for
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loss or corruption of data. Any award of damages from Digia to Licensee
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shall not exceed the total amount Licensee has paid to Digia in
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connection with this Agreement.
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9. CONFIDENTIALITY
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Each party acknowledges that during the Term of this Agreement it shall
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have access to information about the other party's business, business
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methods, business plans, customers, business relations, technology, and
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other information, including the terms of this Agreement, that is
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confidential and of great value to the other party, and the value of
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which would be significantly reduced if disclosed to third parties (the
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"Confidential Information"). Accordingly, when a party (the "Receiving
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Party") receives Confidential Information from another party (the
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"Disclosing Party"), the Receiving Party shall, and shall obligate its
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employees and agents and employees and agents of its Affiliates to: (i)
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maintain the Confidential Information in strict confidence; (ii) not
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disclose the Confidential Information to a third party without the
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Disclosing Party's prior written approval; and (iii) not, directly or
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indirectly, use the Confidential Information for any purpose other than
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for exercising its rights and fulfilling its responsibilities pursuant
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to this Agreement. Each party shall take reasonable measures to protect
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the Confidential Information of the other party, which measures shall
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not be less than the measures taken by such party to protect its own
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confidential and proprietary information.
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"Confidential Information" shall not include information that (a) is or
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becomes generally known to the public through no act or omission of the
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Receiving Party; (b) was in the Receiving Party's lawful possession
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prior to the disclosure hereunder and was not subject to limitations on
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disclosure or use; (c) is developed by the Receiving Party without
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access to the Confidential Information of the Disclosing Party or by
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persons who have not had access to the Confidential Information of the
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Disclosing Party as proven by the written records of the Receiving
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Party; (d) is lawfully disclosed to the Receiving Party without
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restrictions, by a third party not under an obligation of
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confidentiality; or (e) the Receiving Party is legally compelled to
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disclose the information, in which case the Receiving Party shall assert
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the privileged and confidential nature of the information and cooperate
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fully with the Disclosing Party to protect against and prevent
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disclosure of any Confidential Information and to limit the scope of
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disclosure and the dissemination of disclosed Confidential Information
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by all legally available means.
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The obligations of the Receiving Party under this Section shall continue
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during the Initial Term and for a period of five (5) years after
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expiration or termination of this Agreement. To the extent that the
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terms of the Non-Disclosure Agreement between Digia and Licensee
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conflict with the terms of this Section 9, this Section 9 shall be
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controlling over the terms of the Non-Disclosure Agreement.
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10. GENERAL PROVISIONS
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10.1 No Assignment
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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 prior
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written consent of Digia, which shall not be unreasonably withheld.
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10.2 Termination
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Digia may terminate the Agreement at any time immediately upon written
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notice by Digia to Licensee if Licensee breaches this Agreement.
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Upon termination of this Agreement, Licensee shall return to Digia all
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copies of Licensed Software that were supplied by Digia. 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 Digia a written confirmation that this has occurred.
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10.3 Surviving Sections
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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, 10.4,
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10.5, 10.6, 10.7, and 10.8 of this Agreement.
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10.4 Entire Agreement
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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
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non-disclosure agreement executed by the parties in connection with this
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Agreement ("Non-Disclosure Agreement"), if any, shall be subject to
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Section 9. No modification of this Agreement shall be effective unless
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contained in a writing executed by an authorized representative of each
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party. No term or condition contained in Licensee's purchase order shall
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apply unless expressly accepted by Digia in writing. If any provision of
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the Agreement is found void or unenforceable, the remainder shall remain
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valid and enforceable according to its terms. If any remedy provided is
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determined to have failed for its essential purpose, all limitations of
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liability and exclusions of damages set forth in this Agreement shall
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remain in effect.
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10.5 Export Control
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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 requirements
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as well as with all laws and regulations relating to the importation of
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the Licensed Software and shall procure all necessary governmental
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authorizations, including without limitation, all necessary licenses,
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approvals, permissions or consents, where necessary for the
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re-exportation of the Licensed Software.,
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10.6 Governing Law and Legal Venue
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This Agreement shall be governed by and construed in accordance with the
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federal laws of the United States of America and the internal laws of
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the State of New York without given effect to any choice of law rule
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that would result in the application of the laws of any other
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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 of
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the United States District Court for the Southern District of New York
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(or if such court lacks jurisdiction, the state courts of the State of
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New York) for the purposes of any action, claim, suit or proceeding
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between the Parties in connection with any controversy, claim, or
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dispute arising out of or relating to this Agreement; and (b) hereby
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waives, and agrees not to assert by way of motion, as a defense or
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otherwise, in any such action, claim, suit or proceeding, any claim that
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is not personally subject to the jurisdiction of such court(s), that the
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action, claim, suit or proceeding is brought in an inconvenient forum or
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that the venue of the action, claim, suit or proceeding is improper.
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Notwithstanding the foregoing, nothing in this Section 9.6 is intended
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to, or shall be deemed to, constitute a submission or consent to, or
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selection of, jurisdiction, forum or venue for any action for patent
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infringement, whether or not such action relates to this Agreement.
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10.7 No Implied License
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There are no implied licenses or other implied rights granted under this
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Agreement, and all rights, save for those expressly granted hereunder,
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shall remain with Digia and its licensors. In addition, no licenses or
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immunities are granted to the combination of the Licensed Software with
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any other software or hardware not delivered by Digia under this
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Agreement.
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10.8 Government End Users
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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),
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consisting of "commercial computer software" and "commercial computer
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software documentation," as such terms are used in 48 C.F.R. 12.212
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(Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1
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through 227.7202-4 (June 1995), all U.S. Government End Users acquire
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the Licensed Software with only those rights set forth herein. The
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Licensed Software (including related documentation) is provided to U.S.
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Government End Users: (a) only as a commercial end item; and (b) only
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pursuant to this Agreement.
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TECHNOLOGY PREVIEW LICENSE AGREEMENT: Rest of the World
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Agreement version 2.4
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This Technology Preview License Agreement ("Agreement") is a legal
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agreement between Digia Finland Ltd ("Digia"), with its registered office at
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Valimotie 21,FI-00380 Helsinki, Finland and you (either an individual or a
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legal entity) ("Licensee") for the Licensed Software.
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1. DEFINITIONS
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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
|
|
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 such
|
|
entity, is able to direct its affairs and/or to control the composition
|
|
of its board of directors or equivalent body.
|
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|
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"Applications" shall mean Licensee's software products created using the
|
|
Licensed Software which may include portions of the Licensed Software.
|
|
|
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"Term" shall mean the period of time six (6) months from the later of
|
|
(a) the Effective Date; or (b) the date the Licensed Software was
|
|
initially delivered to Licensee by Digia. 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.
|
|
|
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"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 Digia to Licensee in conjunction with this Agreement.
|
|
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|
"Party" or "Parties" shall mean Licensee and/or Digia.
|
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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
|
|
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 Digia regarding the Licensed Software, Digia
|
|
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 Digia 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 Digia containing Feedback, and
|
|
(iii) sublicense all the foregoing rights to third party licensees and
|
|
customers of Digia and/or its Affiliates.
|
|
|
|
3. VALIDITY OF THE AGREEMENT
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|
|
|
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, Digia grants Licensee the
|
|
right to use the Licensed Software in the manner provided below.
|
|
|
|
|
|
4. LICENSES
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|
4.1. Using and Copying
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|
|
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Digia grants to Licensee a non-exclusive, non-transferable, time-limited
|
|
license to use and copy the Licensed Software for sole purpose of
|
|
designing, developing and testing Applications, and evaluating and 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
|
|
|
|
Digia has no obligation to furnish Licensee with any technical support
|
|
whatsoever. Any such support is subject to separate agreement between
|
|
the Parties.
|
|
|
|
|
|
5. PRE-RELEASE CODE
|
|
|
|
The Licensed Software contains pre-release code that is not at the level
|
|
of performance and compatibility of a final, generally available,
|
|
product offering. The Licensed Software may not operate correctly and
|
|
may be substantially modified prior to the first commercial product
|
|
release, if any. Digia is not obligated to make this or any later
|
|
version of the Licensed Software commercially available. The License
|
|
Software is "Not for Commercial Use" and may only be used for the
|
|
purposes described in Section 4. The Licensed Software may not be used
|
|
in a live operating environment where it may be relied upon to perform
|
|
in the same manner as a commercially released product or with data that
|
|
has not been sufficiently backed up.
|
|
|
|
6. THIRD PARTY SOFTWARE
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|
|
|
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.
|
|
|
|
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7. LIMITED WARRANTY AND WARRANTY DISCLAIMER
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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, Digia on behalf of itself and its
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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.
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8. LIMITATION OF LIABILITY
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If, Digia's warranty disclaimer notwithstanding, Digia is held liable to
|
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Licensee, whether in contract, tort or any other legal theory, based on
|
|
the Licensed Software, Digia's entire liability to Licensee and
|
|
Licensee's exclusive remedy shall be, at Digia'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 Digia all copies of the Licensed Software as originally
|
|
delivered to Licensee. Digia 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 Digia 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 Digia to Licensee
|
|
shall not exceed the total amount Licensee has paid to Digia in
|
|
connection with this Agreement.
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9. CONFIDENTIALITY
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Each party acknowledges that during the Term of this Agreement it shall
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|
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 Digia and Licensee
|
|
conflict with the terms of this Section 9, this Section 9 shall be
|
|
controlling over the terms of the Non-Disclosure Agreement.
|
|
|
|
|
|
10. GENERAL PROVISIONS
|
|
|
|
10.1 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 Digia, which shall not be unreasonably withheld.
|
|
|
|
10.2 Termination
|
|
|
|
Digia may terminate the Agreement at any time immediately upon written
|
|
notice by Digia to Licensee if Licensee breaches this Agreement.
|
|
|
|
Upon termination of this Agreement, Licensee shall return to Digia all
|
|
copies of Licensed Software that were supplied by Digia. 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 Digia a written confirmation that this has occurred.
|
|
|
|
10.3 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, 10.2, 10.3, 10.4,
|
|
10.5, 10.6, 10.7, and 10.8 of this Agreement.
|
|
|
|
10.4 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 9. 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 Digia 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.
|
|
|
|
10.5 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.,
|
|
|
|
10.6 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.
|
|
|
|
10.7 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 Digia 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 Digia under this
|
|
Agreement.
|
|
|
|
10.8 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.
|
|
|
|
|
|
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|