NOKIA DM PLUGIN

    LIMITED LICENSE AGREEMENT
 
THIS  LIMITED LICENSE AGREEMENT ("Agreement") is made between:
1  NOKIA CORPORATION, a public limited liability company incorporated in Finland,  having its registered address at Keilalahdentie 4, FIN-02150 Espoo, Finland  business identity code 0112038-9 including its Affiliates within Nokia  Group ("Nokia")

AND

(2)  Licensee  who has logged on at forum.nokia.com website and is identified by his/her email  address ("Licensee")
each a "Party" and together "Parties".


1  DEFINITIONS
In this Agreement, the following terms shall have the following  meanings:
"Affiliate" 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.
"Confidential Information" shall mean all technical and/or  commercial information in any form that is proprietary to Nokia or its  Affiliates and relates to their respective business operations, facilities,  products, techniques and processes, including, without limitation, the Licensed  Materials and any/all copies thereof, translations to different computer  programming languages and/or spoken languages and partial copies thereof. 
"Licensed  Materials" shall  mean, collectively, the current versions as of the effective date of this  Agreement of certain parts of the Nokia Internal Filebrowser and any  accompanying materials including but not limited to related documentation (if  any) delivered by Nokia to Licensee as specified in Appendix 1 and any  subsequent Updates, if any, delivered by Nokia to Licensee under this  Agreement.
"DM Plugin" shall mean a software  component which enables third parties to develop device management  functionality to a client application using the public Software Development Kit.
"Project" shall mean developing  device management functionality into an S60 application.
"Source Code" shall mean such parts of the Licensed Materials  that are delivered to Licensee in source code format. For the purposes of this  Agreement, application programming interfaces and headers shall be considered  as Source Code.
"Update(s)" shall mean any modification, new version,  release, update and/ or upgrade of Licensed Materials or additional features or  functionalities thereto, if any, delivered by Nokia to Licensee under this  Agreement.
2  DELIVERY OF LICENSED MATERIALS
  

2.1	Nokia shall deliver the Licensed Materials  within a reasonable time period from the effective date of this Agreement.  However, Nokia’s duty to deliver the Licensed Materials shall be subject to  Nokia having obtained all necessary licenses, if any, from third parties and  may, at Nokia’s discretion, be conditioned on the demonstration by Licensee to Nokia that the security procedures and measures  required under Section 8.5 hereunder have been implemented.


2.2	Any time during the term of  this Agreement, Licensee shall, upon Nokia’s request, return or destroy the  Licensed Materials or any part thereof, and any copies thereof in its  possession.

3  LICENSE AND USE
3.1	Subject  to the terms and conditions of this Agreement, Nokia grants to Licensee, and  Licensee accepts, a free of charge, non-transferrable, non-sublicenseable,  non-exclusive, worldwide, limited license to use the Licensed Materials solely  for the purpose of the Project.

3.2	Licensee shall have no  right to export, sublicense, rent, disclose, sell, market, commercialise,  sub-license, re-license or otherwise transfer to any other party whatsoever the  Licensed Materials, or use the Licensed Materials for any purpose that is not  expressly stated in this Section 3. The header files and the application  programming interfaces that are delivered within the Licensed Materials shall  not be modified without the explicit prior written approval from Nokia.


4  OWNERSHIP AND NON-ASSERTION 
4.1	Ownership
The Licensed Materials and any Confidential Information of Nokia, and all rights  therein, including without limitation, any intellectual property rights therein,  are owned solely by Nokia or its licensors. All Nokia's trademarks, service  marks, trade names, logos or other words or symbols are and will remain the  exclusive property of Nokia.
4.2	Non-assertion
Licensee shall conduct a thorough search of its own portfolio of intellectual property  rights within sixty (60) days from the first delivery of the Licensed Materials  by Nokia to Licensee. Within the same period Licensee shall notify Nokia in  writing of any and all such patents, pending patent applications, copyright and  other intellectual property rights that Licensee considers to be infringed by  the Licensed Materials, after which the Parties undertake to commence good  faith negotiations of the license from Licensee to Nokia for such patents and  pending patent applications or other intellectual property rights on fair and  reasonable non-discriminatory terms and against fair compensation.

Notwithstanding  to the patents, patent applications, copyright or other intellectual property  rights notified by Licensee to Nokia within the sixty (60) days time period as  defined above, if any, 
(I) The Licensee , on behalf of itself  and its Affiliates, covenants and agrees not to bring suit or otherwise assert  a claim against Nokia, Nokia’s Affiliates, Nokia´s licensees and their  customers before any court or administrative agency because of Nokia's, Nokia’s  Affiliates’ Nokia’s licensees’ and their customers’ reproduction, use,  marketing, selling, distribution, licensing, sub-licensing or other disposal of  the Licensed Materials.
(II) The Licensee and its Affiliates  shall impose the obligation stated in paragraph (i) above on any third party to  whom the Licensee or its Affiliates may assign their intellectual property  rights, if Licensed Materials may be infringing these intellectual property  rights. This obligation is restricted to suits or other assertions based on the  assigned rights.

Where  Nokia delivers any Updates created by or on behalf of Nokia or its licensee,  which in Licensee’s opinion, infringes intellectual property rights of Licensee  or one of its Affiliates, Licensee shall within sixty (60) days of the Nokia  delivery notify Nokia in writing whether it (or the relevant Affiliate) will  assert such intellectual property rights against Nokia or any other Nokia  licensee and, if so, whether (i) by seeking to prevent any use or other  exploitation of such Updates, or (ii) by seeking to make such use or other  exploitation subject to a royalty-bearing license against fair compensation. In  the event no such notice is given by Licensee within such sixty (60) days time  period, Licensee or any of its Affiliates shall not assert any intellectual  property rights against Nokia or another Nokia licensee in respect of the  Updates.
5  TECHNICAL SUPPORT

Licensee  acknowledges that Nokia has no obligation to provide Licensee with any  technical support or maintenance.
6  NO WARRANTY

THE LICENSED MATERIALS ARE PROVIDED  "AS IS" WITHOUT WARRANTY OF ANY KIND EXPRESS OR IMPLIED AND NEITHER  NOKIA, ITS LICENSORS, SUPPLIERS OR AFFILIATES NOR THE COPYRIGHT HOLDERS MAKE  ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT  LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR  PURPOSE OR THAT THE LICENSED MATERIALS WILL NOT INFRINGE ANY THIRD PARTY PATENTS,  COPYRIGHTS, TRADEMARKS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS.  THERE IS NO WARRANTY BY NOKIA OR BY ANY OTHER  PARTY THAT THE FUNCTIONS CONTAINED IN THE LICENSED MATERIALS WILL MEET THE  REQUIREMENTS OF LICENSEE OR THAT THE OPERATION OF THE LICENSED MATERIALS WILL  BE UNINTERRUPTED OR ERROR-FREE. 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. 

7  LIMITATION OF LIABILITY

IN NO EVENT SHALL NOKIA, ITS  EMPLOYEES OR SUPPLIERS, LICENSORS OR 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, COVER,  PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED 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, EVEN  IF NOKIA OR ITS EMPLOYEES OR SUPPLIERS, LICENSORS OR AFFILIATES ARE ADVISED OF  THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES/STATES/ JURISDICTIONS  DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, BUT MAY ALLOW LIABILITY  TO BE LIMITED, IN SUCH CASES, NOKIA, ITS EMPLOYEES OR SUPPLERS, LICENSORS OR  AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S.$50. 

8  CONFIDENTIALITY
8.1	Licensee  shall keep the Confidential Information strictly confidential and shall not  disclose it to third parties (including its Affiliates) without the prior  written permission of Nokia. Confidential Information received hereunder shall  not be used for any purpose other than defined in Section 3 without the prior  written permission of Nokia.
8.2	Licensee  shall at all times maintain the Confidential Information and any copies thereof  at its premises or otherwise in secure fashion and will take all reasonable  measures to protect it from theft or unauthorised copying, reproduction,  distribution, disclosure, dissemination or use, which measures shall be no less  stringent than the measures employed by Licensee at that time to secure and  protect its own confidential and proprietary information of a similar nature, and  to take all reasonably appropriate actions to satisfy its obligations  hereunder.
8.3	Licensee  shall restrict the access to the Confidential Information received from Nokia  to only those of its employees to whom such access is necessary for carrying  out the purpose of this Agreement. Neither Licensee, nor Licensee's employees  or agents shall sell, transfer, publicly disclose, display or otherwise make  available to third parties (including its Affiliates) any Confidential  Information. Upon its discovery of any unauthorized possession, use or  knowledge of the Confidential Information arising out of Licensee's possession  of the Confidential Information, Licensee shall promptly notify Nokia of the  same and shall cooperate with Nokia in every reasonable effort to regain  possession or prevent further unauthorized use of the Confidential Information.
8.4	The  confidentiality restrictions in this Section 8 shall not apply 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 Licensee; or
  
  

    
 
  
  

    
II
    
was known to Licensee prior to  disclosure by Nokia as proven by the written records of Licensee; or
  
  

    
 
  
  

    
III
    
is disclosed to Licensee by a  third party who did not obtain such information, directly or indirectly, from  Nokia; or
  
  

    
 
  
  

    
IV
    
was  independently developed by personnel having no access to the Confidential  Information by Licensee as proven by the written records of Licensee.
  

    
 


8.5	The  provisions of this Section 8 shall bind the Parties for a period of five (5)  years from the date of disclosure of any items of Confidential Information  regardless of any earlier termination, expiry or fulfilment of this Agreement. 

9  CONTACT INFORMATION AND NOTICES

9.1	Any  notice given by one Party to the other shall be deemed properly given if  specifically acknowledged by the receiving Party in writing or when delivered  to the recipient by hand, fax, or special courier during normal business hours  to the following addresses (or such other address as may be notified in writing  from time to time by either Party):
The  contact person concerning any issues relating to this Agreement is:


  

    
Nokia:
    
NOKIA CORPORATION
  
  

    
Attention:
    
Tommi  Kaasalainen
  
  

    
Address:
    
P.O. Box 100, 00045  NOKIA GROUP, Finland
  
  

    
Phone:
    
+358 50 486 1210
  
  

    
Fax:
    
 
  
  

    
E-mail:
    
tommi.kaasalainen@nokia.com
  


Notice  shall be deemed received on the first business day following receipt. Each  communication and document made or delivered by one Party to another pursuant  to this Agreement shall be in the English language or accompanied by a  translation thereof.

10  TERMINATION

10.1  This Agreement shall  become effective on the  date accepted by the Licensee by clicking the link below.
10.2  This Agreement may also be  terminated in the following situations:
10.3  Either party may terminate this  Agreement at any time by providing thirty (30) days written prior notice to the  other party.
10.4  Either  Party may terminate this Agreement if the other Party is in default of any of  the terms and conditions of this Agreement, and termination is effective if the  defaulting Party fails to correct such default within ten (30) days after the  receipt of written notice of default from the other Party at the address  above.
10.5  Either  Party may also terminate this Agreement immediately upon written notice to the  other party at the address above if the other Party:

  

    
(I)
    
becomes bankrupt or insolvent,
  
  

    
(II)
    
files a petition  therefore,
  
  

    
(III)
    
makes an assignment  for the benefit of its creditors,
  
  

    
(IV)
    
enters proceedings for  winding up or dissolution, or
  
  

    
(V)
    
is dissolved.
  


10.6	Furthermore,  this Agreement may be terminated by Nokia with immediate effect by written  notice by Nokia in the event that there is a direct or indirect change of  ownership of the Licensee or its Affiliates, or if any agreements are entered  into whereby control over Licensee or of any such Affiliate passes or will pass  out of Licensee.
10.7	Within  five (5) days after termination of this Agreement or, upon request of Nokia, at  any time during the term of this Agreement, Licensee shall destroy or return to  Nokia, as instructed by Nokia, Licensed Materials and all possible copies of  the Licensed Materials in its possession and all related materials and  Confidential Information provided by Nokia, and provide a letter certifying  such destruction or return. 
10.8	Sections 1, 4, 6, 7, 8, and 11.8 shall  survive any termination of this Agreement.
11  GENERAL

11.1	This  Agreement is the entire agreement between the Parties relating to the subject  matter hereof and supersedes any prior representations, communications, undertakings,  or discussions relating to the Licensed Materials. This Agreement may only be  modified by a writing signed by both Parties.  
11.2	This  Agreement may not be assigned in whole or in part by either Party without the  prior written consent of the other Party, provided, however that Nokia shall be  entitled to assign this Agreement to its Affiliate without separate consent  from the Licensee. 
11.3	This  Agreement shall be construed and interpreted in accordance with the laws of Finland,  excluding its rules for choice of law. Any disputes relating to or arising in  connection with this Agreement shall be finally settled in arbitration. The  arbitrator is to be appointed by the Arbitration Committee of the Central  Chamber of Commerce of Finland and the rules of the said Committee are to be  followed in the arbitration. The award shall be final and binding and  enforceable in any court of competent jurisdiction. The arbitration shall be  held in Helsinki, Finland, in the English language.  The Parties undertake and agree that all arbitral proceedings  conducted with reference to this Section 12.3 shall be kept strictly  confidential and all information disclosed in the course of such arbitral  proceeding shall be used solely for the purpose of those proceedings.  Notwithstanding  the foregoing, nothing in this Agreement shall be deemed to limit the Parties'  rights to seek interim injunctive relief or to enforce an arbitration award in  any court of law. 
11.4	Each  Party will be deemed to have the status of an independent contractor towards  the other Party, and nothing in this Agreement will be deemed to place the  parties in the relationship of employer‑employee, principal‑agent, partners or  joint venturers.
11.5	The  failure of either Party to enforce any provision of this Agreement shall not be  deemed a waiver of that or any other provision of this Agreement.
11.6	If  any provision contained in this Agreement is determined to be invalid or  unenforceable, in whole or in part, the remaining provisions and any partially  enforceable provision will, nevertheless, be binding and enforceable, and the  Parties agree to substitute for the invalid provision a valid provision which  most closely approximates the intent and economic effect of the invalid  provision.
11.7	Licensee  shall follow all export control laws and regulations relating to the Licensed  Materials.
11.8	Neither  Party shall make any publicity on, press release of or reference to this  Agreement, the other Party or the cooperation between the parties without the  prior mutual agreement in writing between the parties.



 APPENDIX 1
Description of Licensed Materials:
 

  

    
MODULE     NAME
        
 
    
DESCRIPTION
        
 
    
TYPE
        
 
  
  

    
smldmadapter.h
    
 
    
Header file
  
  

    
smldmadapter.inl
    
 
    
Header file
  
  

    
S60 3rd Edition: Device Management Plug-in API Specification
    
 
    
Document
  
  

    
S60 3rd Edition: Implementing Device Management Plug-in Adapter
    
 
    
Document
  

Filling instructions:

  Module name: Name of the  software module. Can be a filename or a module name.

  Description: Description of  the module functionality.

  Type: One or  more of the following: Binaries; Header files; Source Code; Documentation.