MGMAPS SDK LICENSE AGREEMENT (For Mobile Java platforms: CLDC/MIDP, Google Android and RIM BlackBerry)
This is a legal agreement (referred to as this "Agreement") between you (either an individual or a single entity) and Nutiteq LLC (Licensor) for the MGMaps SDK software product on the CLDC/MIDP platform (the "Supported platforms") accompanying this Agreement, which includes computer software in source code and accompanying documentation and samples and may include associated media and printed materials (the "Product").
You must read and agree to this Agreement and terms and make payment of license fees hereunder BEFORE installing the Product or using the Product in any way. If you do not agree to the license terms and payment, do not download, install or use the Product.
BY CLICKING THE ACCEPTANCE BUTTON OR DOWNLOADING OR INSTALLING OR USING THE PRODUCT, YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT.
This Agreement represents the entire agreement concerning the Product between you and Nutiteq LLC (referred to as "Licensor"), and it supersedes any prior proposal, representation, or understanding between the parties relating to the subject matter hereof.
1. LICENSE GRANT. Upon receipt by Licensor of the of the License Fee and subject to your compliance with the terms and conditions of this Agreement, Licensor hereby grants to you, and you accept, a non-exclusive and non-transferable license to use the Product only as authorized in this License Agreement and on the applicable price list of the software. The license granted under this Agreement is only for use in the Supported platforms and the use of the source code in an application developed and owned by you for the Supported platforms (an "Authorized Application"). During the term of this Agreement, you are authorized to sublicense the code of the Product but only to your end user customers for Authorized Applications and only in format of binary obfuscated object code. All such licensees and sublicensees by you must agree to include in the "about box" and in any printed or online documentation for or containing the Authorized Application the following information: "This product includes Nutiteq SDK software (http://www.nutiteq.com/)." You acknowledge and agree that the Product will be used by you only in connection with your Authorized Applications. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this Agreement, except that you may sublicense the obfuscated object code in Authorized Applications as provided above. Except as authorized under this paragraph, no copies of the Product or any portions thereof may be made by you or any person under your authority or control.
The licensor grants the licensee for the period of this agreement the non-exclusive and individual right to install and use the software on as many computers as desired. Additionally rights depend on the type of license that is purchased:
1.1. For each purchased "Single" license the software can be used to develop a single mobile application, which can be sold by the licensee any number of times. It is possible to purchase several "Single" licenses. A single application can also include design variations, customizations and device specific ports, as long as the average user of such an application would recognize it as a single application.
a. The licensee of a Single license receives any updates within at least the 12 months following the purchase.
b. The licensee receives support free of charge for the first two months after the purchase via email. Answers are given within a working week.
1.2. When an "Enterprise" license has been purchased, the licensee can use the software to develop any number of applications which can be sold any number of times.
a. The licensee of an Enterprise receives any updates at least the 12 months following the purchase.
b. The licensee receives support free of charge for the six two months after the purchase via email or telephone. The licensee can optionally obtain additional support after the free support period. Answers are given within five working days, bugfixes are provided as soon as possible.
c. Up to one man-week of feature requests are implemented for free within specified time-frames.
2. LICENSOR'S RIGHTS. You acknowledge and agree that the Product including without limitation, software, documentation and samples are proprietary products of Licensor protected under copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You further acknowledge and agree that all right, title and interest in and to the Product, including associated intellectual property rights, are and shall remain with Licensor. The Product is licensed, not sold. This Agreement does not convey to you an interest in or to the Product, but only a limited right of use revocable in accordance with the terms of this Agreement. This Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights with respect to the Product.
3. LICENSE FEE. Upon execution of this Agreement, you shall pay to Licensor, a non-refundable one time License Fee in the amount specified for the Product in consideration for the nonexclusive license granted under this Agreement.
4. NOT FOR RESALE OR RENT. You may not resell, rent, lease, license, lend or otherwise transfer for value or otherwise, the Product to third parties. You do not have the right and must not redistribute the Product or charge money for the Product or any derivative except as integrated in the Authorized Application pursuant to Section 1 above.
5. TERM. This Agreement shall commence upon on the date of the your earliest acceptance of this Agreement by either clicking the acceptance button or downloading or installing or using the Product or making payment of the License Fee, as set forth above (the "Effective Date"), and subject to payment of the License Fee remain in effect until terminated (a) by you by destroying all copies of the Product, its documentation and component parts received or made by you, or (b) by Licensor upon the breach by you of any term hereof. Upon termination of this Agreement, you agree to cease distributing the Product to others and to terminate your sublicenses and distribution of Licensor's Product to others. Upon termination you agree to destroy all copies of the Product, its documentation and component parts received or made by you.
6. UPDATES. Updates are provided according to licensed package during the term of this license and support contract.
6.1. The licensee recognizes and accepts that it is not possible to guarantee absolute freedom of defects at the current state of the technology due to the complexity of the software in question.
6.2. The License Fee includes updates depending on purchased product option, for limited time. Any other Updates which may be provided in Licensor's discretion may require payment of additional license fees or payments.
6.3. Error Corrections are Licensor in ASAP basis, when available. Licensor provides error corrections in the first priority, but there is no specific term to fix specific errors. Remedy is provided according to purchased support contract, if technically possible. Error can be declared as not to be fixed, if licensor finds problem specific to particular device.
6.4. You acknowledge and agree that you shall be solely responsible for maintaining and supporting any Authorized Application, and you shall be responsible for all engineering resources necessary for such maintenance and support. You shall not refer any of your sublicensees, end users, customers or any other person to Licensor for support.
7. DISCLAIMER OF WARRANTY YOU ACKNOWLEDGE THAT THE PRODUCT AND ALL INFORMATION SUPPLIED BY LICENSOR UNDER THIS AGREEMENT IS PROVIDED BY LICENSOR "AS IS" AND WITHOUT WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SAME, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF DESIGN MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
8. LIMITATION OF LIABILITY
8.1. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT (INCLUDING NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. LICENSOR'S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT IN THE AGGREGATE EXCEED THE LICENSE FEE PAID TO LICENSOR FOR THE USE OF THE PRODUCT. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A WARRANTY OR REPRESENTATION BY LICENSOR THAT THE PRODUCT WILL BE FREE FROM INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. LICENSOR HEREBY EXPRESSLY DISCLAIMS AND SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY ARISING AS A RESULT OF OR IN CONNECTION WITH ANY CLAIM OR SUIT ALLEGING THAT THE USE OF LICENSOR TECHNOLOGY OR THE PRODUCT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8.2. You shall have the sole responsibility for adequate protection and backup of data and/or equipment used with the Product and you or any other person shall not make any claim against Licensor for lost data, re-run time, inaccurate output, work delays, or lost profits resulting from the use of the Product or any portion thereof.
9. MISCELLANEOUS
9.1. You agree to cooperate with Licensor and take all reasonable actions required to vest and secure in Licensor the ownership rights and appurtenant intellectual property rights as provided in this Agreement. Should any such rights vest in you by operation of law or otherwise in a manner inconsistent with the parties' intentions as expressed in this Agreement, then you shall upon request by Licensor, promptly make the appropriate and necessary assignment of rights to Licensor, and/or otherwise take all steps reasonably requested to conform the parties' respective ownership rights with this Agreement, including but not limited to the execution of recordable instruments and other documents necessary to perfect such assignments.
9.2. Except as provided in Section 1, you may not assign or otherwise transfer any of your rights or obligations under this Agreement, without the prior written consent of the Licensor. This Agreement is made for the benefit of the parties hereto, and not for the benefit of any third parties. The relationship between Licensor and you is that of independent contractors and neither you nor any of your agents shall have any authority to bind Licensor in any way.
9.3. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non- enforcement.
9.4. The headings used herein are for reference only and shall not be considered as substantive parts of this Agreement.
9.5. Any action related to this Agreement will be governed by the law of Estonia and the choice of law rules of any jurisdiction shall not apply. If the Parties fail to resolve the disputes relating to this Agreement through negotiations, the dispute shall be conclusively resolved in the Arbitration Court of the Chamber of Commerce and Industry of Estonia in Tallinn in accordance with the Rules of the Arbitration Court. The dispute shall be resolved on the basis of the laws of Estonia. The language of the Arbitration Court shall be Estonian.
9.6. You acknowledge and agree that any violation or threat of violation hereof will result in irreparable harm to Licensor for which damages would not be an adequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, including without limitation the recovery of damages for breach of this Agreement, Licensor shall be entitled to immediate equitable relief, including both interim and permanent injunctions, to prevent any unauthorized use or disclosure, and to such other and further equitable relief as the court may deem proper under the circumstances.
9.7. Export Control. All Software and technical information delivered under this Agreement may be subject to export or import regulations. You agree to strictly comply with all such laws and regulations. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any provision in this Agreement should be held illegal or unenforceable, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
9.8. This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior oral or written communications, proposals, representations, and warranties relating to its subject matter. No modification to this Agreement will be binding, unless in writing and signed by each party.