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Qt Embedded Commercial Developer License Agreement
Agreement version 1.2
This Qt Embedded Commercial License Agreement ("Agreement") is a legal
agreement between Nokia Corporation ("Nokia"), with its registered
office at Keilalahdentie 4, 02150 Espoo, Finland and you (either an
individual or a legal entity) ("Licensee") for the Licensed Software
(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.
"Applications" shall mean Licensee's software products created using
the Licensed Software which may include portions of the Licensed
Software.
"Deployment Platforms" shall mean the operating system(s) listed in
the License Certificate onto which Licensee is authorized to deploy
Applications.
"Designated User(s)" shall mean the employee(s) of Licensee acting
within the scope of their employment or Licensee's consultant(s) or
contractor(s) acting within the scope of their services for Licensee
and on behalf of Licensee.
"Development Platforms" shall mean the operating system(s) listed in
the License Certificate on which Licensee may use, develop and modify
the Licensed Software.
"Initial Term" shall mean the period of time one (1) year 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.
"License Certificate" shall mean the document accompanying the
Licensed Software which specifies the modules which are licensed under
the Agreement, Development Platforms, Deployment Platforms and
Designated Users.
"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.
Licensed Software does not include Third Party Software (as defined in
Section 7).
"Modified Software" shall mean modifications made to the Licensed
Software by Licensee.
"Party or Parties" shall mean Licensee and/or Nokia.
"Support" shall mean standard developer support that is provided by
Nokia to assist eligible Designated Users in using the Licensed
Software in accordance with its established standard support
procedures listed at:
http://qt.nokia.com/support-services/files/pdf/.
"Updates" shall mean a release or version of the Licensed Software
containing enhancements, new features, bug fixes, error corrections
and other changes that are generally made available to users of the
Licensed Software that have contracted for maintenance and support.
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.
Nokia shall own all right, title and interest including the
intellectual property rights in and to the information on bug fixes or
error corrections relating to the Licensed Software that are submitted
by Licensee to Nokia as well as any intellectual property rights to
the correction of any errors, if any. To the extent any rights do not
automatically vest in Nokia, Licensee assigns, and shall ensure that
all of its Affiliates, agents, subcontractors and employees assign,
all such rights to Nokia. All Nokia's and/or its licensors'
trademarks, service marks, trade names, logos or other words or
symbols are and shall remain the exclusive property of Nokia or its
licensors respectively.
3. MODULES
Some of the files in the Licensed Software have been grouped into
Modules. These files contain specific notices defining the Module of
which they are a part. The Modules licensed to Licensee are specified
in the License Certificate accompanying the Licensed Software. The
terms of the License Certificate are considered part of the
Agreement. In the event of inconsistency or conflict between the
language of this Agreement and the License Certificate, the provisions
of this Agreement shall govern.
4. 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
should not install, copy, or otherwise use the Licensed Software. In
addition, by installing, copying, or otherwise using any Updates or
other components of the Licensed Software that Licensee receives
separately as part of the Licensed Software, Licensee agrees to be
bound by any additional license terms that accompany such Updates, if
any. If Licensee does not agree to the additional license terms that
accompany such Updates, Licensee should not install, copy, or
otherwise use such Updates.
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.
5. LICENSES
5.1 Using, Modifying and Copying
Nokia grants to Licensee a non-exclusive, non-transferable, perpetual
license to use, modify and copy the Licensed Software for Designated
Users specified in the License Certificate for the sole purposes of:
(i) designing, developing, and testing Application(s);
(ii) modifying the Licensed Software as limited by Section 8 below; and
(iii) compiling the Licensed Software and/or Modified Software source
code into object code.
Licensee may install copies of the Licensed Software on an unlimited
number of computers provided that only the Designated Users use the
Licensed Software. Licensee may at any time designate another
Designated User to replace a then-current Designated User by notifying
Nokia, provided that a) the then-current Designated User has not been
designated as a replacement during the last six (6) months; and b)
there is no more than the specified number of Designated Users at any
given time.
5.2 No Distribution and Limited Exception
Licensee may not distribute, transfer, assign or otherwise dispose of
the Licensed Software and/or Modified Software, except as provided by
a separate distribution agreement with Nokia for the Deployment
Platforms that Licensee has licensed from Nokia. Distribution on
Platforms, other than Deployment Platforms is strictly prohibited.
Notwithstanding the above limitation, Licensee may distribute the
Application in binary/compiled form onto devices running Windows
CE/Windows Mobile, provided the core functionality of the device does
not depend on either the Licensed Software or the Application.
5.3 Further Requirements
The licenses granted in this Section 5 by Nokia to Licensee are
subject to Licensee's compliance with Section 8 of this Agreement.
6. VERIFICATION
Nokia or a certified auditor on Nokia's behalf, may, upon its
reasonable request and at its expense, audit Licensee with respect to
the use of the Licensed Software. Such audit may be conducted by mail,
electronic means or through an in-person visit to Licensee's place of
business. Any such in-person audit shall be conducted during regular
business hours at Licensee's facilities and shall not unreasonably
interfere with Licensee's business activities. Nokia will not remove,
copy, or redistribute any electronic material during the course of an
audit. If an audit reveals that Licensee is using the Licensed
Software in a way that is in material violation of the terms of the
Agreement, then Licensee shall pay Nokia's reasonable costs of
conducting the audit. In the case of a material violation, Licensee
agrees to pay Nokia any amounts owing that are attributable to the
unauthorized use. In the alternative, Nokia reserves the right, at
Nokia's sole option, to terminate the licenses for the Licensed
Software.
7. 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 (i) that
some part of Third Party Software may require additional licensing of
copyright and patents from the owners of such, and (ii) that
distribution of any of the Licensed Software referencing any portion
of a Third Party Software may require appropriate licensing from such
third parties.
8. CONDITIONS FOR CREATING APPLICATIONS
The licenses granted in this Agreement for Licensee to create, modify
and distribute Applications is subject to all of the following
conditions: (i) all copies of the Applications Licensee creates must
bear a valid copyright notice either Licensee's own or the copyright
notice that appears on the Licensed Software; (ii) Licensee may not
remove or alter any copyright, trademark or other proprietary rights
notice contained in any portion of the Licensed Software including but
not limited to the About Boxes; (iii) Licensee will indemnify and hold
Nokia, its Affiliates, contractors, and its suppliers, harmless from
and against any claims or liabilities arising out of the use,
reproduction or distribution of Applications; (iv) Applications must
be developed using a licensed, registered copy of the Licensed
Software; (v) Applications must add primary and substantial
functionality to the Licensed Software; (vi) Applications may not pass
on functionality which in any way makes it possible for others to
create software with the Licensed Software; however Licensee may use
the Licensed Software's scripting functionality solely in order to
enable scripting that augments the functionality of the Application(s)
without adding primary and substantial functionality to the
Application(s); (vii) Licensee may create Modified Software that
breaks the source or binary compatibility with the Licensed
Software. This includes, but is not limited to, changing the
application programming interfaces ("API") by adding, changing or
deleting any variable, method, or class signature in the Licensed
Software, the inter-process QCop specification, and/or any
inter-process protocols, services or standards in the Licensed
Software libraries. To the extent that Licensee breaks source or
binary compatibility with the Licensed Software, Licensee acknowledges
that Nokia's ability to provide Support may be prevented or limited
and Licensee's ability to make use of Updates may be restricted;
(viii) Applications may not compete with the Licensed Software; (ix)
Licensee may not use Nokia's or any of its suppliers' names, logos, or
trademarks to market Applications, except to state that Licensee's
Application was developed using the Licensed Software.
NOTE: The Open Source Editions of Nokia's Qt products and the Qt,
Qtopia and Qt Extended versions previously licensed by Trolltech
(collectively referred to as "Products") are licensed under the terms
of the GNU Lesser General Public License version 2.1 ("LGPL") and/or
the GNU General Public License versions 2.0 and 3.0 ("GPL") (as
applicable) and not under this Agreement. If Licensee has, at any
time, developed all (or any portions of) the Application(s) using a
version of one of these Products licensed under the LGPL or the GPL,
Licensee may not combine such development work with the Licensed
Software and must license such Application(s) (or any portions derived
there from) under the terms of the GNU Lesser General Public License
version 2.1 (Qt only) or GNU General Public License version 2.0 (Qt,
Qtopia and Qt Extended) or version 3 (Qt only) copies of which are
located at http://www.gnu.org/licenses/old-licenses/lgpl-2.1.html,
http://www.fsf.org/licensing/licenses/info/GPLv2.html, and
http://www.gnu.org/copyleft/gpl.html.
9. LIMITED WARRANTY AND WARRANTY DISCLAIMER
Nokia hereby represents and warrants with respect to the Licensed
Software that it has the power and authority to grant the rights and
licenses granted to Licensee under this Agreement. Except as set
forth above, 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 and fitness for a particular purpose,
title and non-infringement with regard to the Licensed Software.
10. LIMITATION OF LIABILITY
If, Nokia's warranty disclaimer notwithstanding, Nokia is held to be
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.
11. SUPPORT AND UPDATES
Licensee will be eligible to receive Support and Updates during the
Initial Term, in accordance with Nokia's then current policies and
procedures, if any. Such policies and procedures may be changed from
time to time. Following the Initial Term, Nokia shall no longer make
the Licensed Software available to Licensee unless Licensee purchases
additional Support and Updates according to this Section 11 below.
Licensee may purchase additional Support and Updates following the
Initial Term at Nokia's terms and conditions applicable at the time of
renewal.
12. CONFIDENTIALITY
Each party acknowledges that during the Initial 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 12, this Section 12 shall be
controlling over the terms of the Non-Disclosure Agreement.
13. GENERAL PROVISIONS
13.1. Marketing
Nokia may include Licensee's company name and logo in a publicly
available list of Nokia customers and in its public communications.
13.2. 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.
13.3. Termination
Nokia may terminate the Agreement at any time immediately upon written
notice by Nokia to Licensee if Licensee breaches this Agreement.
Either party shall have the right to terminate this Agreement
immediately upon written notice in the event that the other party
becomes insolvent, files for any form of bankruptcy, makes any
assignment for the benefit of creditors, has a receiver,
administrative receiver or officer appointed over the whole or a
substantial part of its assets, ceases to conduct business, or an act
equivalent to any of the above occurs under the laws of the
jurisdiction of the other party.
Upon termination of the Licenses, 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.
13.4. 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, 5.1, 6, 7, 8(iii), 10, 12,
13.5, 13.6, 13.9, 13.10, and 13.11 shall survive the termination of
the Agreement. Notwithstanding the foregoing, Sections 5.1 shall not
survive if the Agreement is terminated for material breach.
13.5. 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 12. 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.
13.6. Payment and Taxes
All payments under this Agreement are due within thirty (30) days of
the date Nokia mails its invoice to Licensee. All amounts payable are
gross amounts but exclusive of any value added tax, use tax, sales tax
or similar tax. Licensee shall be entitled to withhold from payments
any applicable withholding taxes and comply with all applicable tax
and employment legislation. Each party shall pay all taxes
(including, but not limited to, taxes based upon its income) or levies
imposed on it under applicable laws, regulations and tax treaties as a
result of this Agreement and any payments made hereunder (including
those required to be withheld or deducted from payments). Each party
shall furnish evidence of such paid taxes as is sufficient to enable
the other party to obtain any credits available to it, including
original withholding tax certificates.
13.7. Force Majeure
Neither party shall be liable to the other for any delay or
non-performance of its obligations hereunder other than the obligation
of paying the license fees in the event and to the extent that such
delay or non-performance is due to an event of Force Majeure (as
defined below). If any event of Force Majeure results in a delay or
non-performance of a party for a period of three (3) months or longer,
then either party shall have the right to terminate this Agreement
with immediate effect without any liability (except for the
obligations of payment arising prior to the event of Force Majeure)
towards the other party. A "Force Majeure" event shall mean an act of
God, terrorist attack or other catastrophic event of nature that
prevents either party for fulfilling its obligations under this
Agreement.
13.8. Notices
Any notice given by one party to the other shall be deemed properly
given and deemed received if specifically acknowledged by the
receiving party in writing or when successfully delivered to the
recipient by hand, fax, or special courier during normal business
hours on a business day to the addresses specified below. Each
communication and document made or delivered by one party to the other
party pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof.
Notices to Nokia shall be given to:
Nokia Norge AS
Sandakerveien 116
NO-0484 Oslo, Norway
Fax: +47 21 69 48 02
13.9. 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/or Modified Software and/or
Applications 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, Modified Software or
Applications.
13.10. 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.
13.11 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 and/ Modified Software, as applicable, with any other
software or hardware not delivered by Nokia under this Agreement.