WURFL CLOUD BETA LICENSE AGREEMENT
This non-exclusive SOFTWARE LICENSE AGREEMENT is entered into by and between ScientiaMobile, Inc. (“ScientiaMobile”), a Delaware corporation having a mailing address at 13800 Coppermine Road, 3rd Floor, Herndon, VA 20171, USA and the user that is currently logged in (“Licensee”).
License Terms and Conditions
The following terms, when capitalized and used in this Agreement, shall have the following meanings:
- “Cloud Service” means the service operated by ScientiaMobile in connection with which the Software is used.
- “Documentation” means the most current version of the documentation for the Software.
- “Platforms” means only those of the Java, PHP or .Net platforms.
- “Software” means a beta version of the client software used in connection with a cloud service offered by ScientiaMobile that makes available the database and application programming interfaces known as WURFL, the version of which is identified on the first page of this Agreement.
- License and Retention of Rights.
- License. Licensee is granted the non-exclusive, non-transferrable, non-assignable, limited rights to the Software to install and use the Software solely in connection with the Platforms to test the Software and provide feedback with respect to the Software and the Cloud Service. Licensee acknowledges that in order to use the Software, it must register for the Cloud Service.
- Retention of Rights. Licensee’s rights to use the Software are solely as specified in this Agreement, and ScientiaMobile retains all rights in and to the Software and Documentation not expressly granted to Licensee under this Agreement. Nothing in this Agreement constitutes a waiver of ScientiaMobile’s rights under U.S. Copyright law or any other federal or state law. Subject only to the rights granted to Licensee herein, ScientiaMobile shall at all times retain all ownership in and to the Software and Documentation, including the concepts and technology inherent in such Software and Documentation, including to any modifications. The Software shall at all times remain the sole and exclusive property of ScientiaMobile. Nothing contained in this Agreement shall directly or indirectly be construed to assign or grant to Licensee any right, title or interest in and to the trademarks, service marks, copyrights, patents or proprietary or trade secrets of ScientiaMobile or any ownership rights in or to the Software or Documentation.
- Use at Own Risk. The Software is licensed for free and “as is” and the Licensee understands that, as a beta product, the software may have errors, bugs and other defects and the Licensee agrees to use the Software at its own risk without recourse from ScientiaMobile with respect to any such errors, bugs and other defects..
- Beta Testing Services.
- Licensee Obligation. The Software is intended solely for testing purposes and for the purposes of improving the Software for eventual commercial release. Licensee agrees to promptly advise ScientiaMobile of all material issues and concerns the Licensee discovers with respect to the Software, as well as any features or functionality the Licensee may desire to report that it would like to see added to the Software, using the instructions available at ScientiaMobile’s website, presently located at www.scientiamobile.com.
- Prohibited Uses. Licensee shall not (and any such prohibited use shall constitute an infringement of the Software and/or Documentation):
- Use, copy, modify or merge copies of the Software or Documentation except as specifically permitted in this Agreement;
- Use any backup or archival copies of the Software (or allow someone else to use such copies) for any purpose other than to replace the original copy in the event it is destroyed or becomes defective; or
- Sublicense, lend, lease, rent, resell use, distribute, assign or otherwise transfer the Software or any other rights licensed hereunder.
- Term and Termination.
- Term. This Agreement shall commence on the Effective Date set forth on the first page of this Agreement and shall for a period of three (3) months.
- Material Breach of License Grant. This Agreement will terminate immediately upon notice if ScientiaMobile notifies Licensee that it is using the Software in a manner not licensed hereunder and Licensee does not cease such use within two (2) business days after receipt of such notice.
- Other Material Breach. Either party may terminate this Agreement immediately upon written notice to the other party in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of notice of such breach.
- Effect of Termination. Upon termination of this Agreement each party will immediately return to the other any Know-How (as defined in Section 7.1) of the other in the first party’s possession or control, or destroy all copies in its possession or control, and upon request, an officer of each party will certify this to the other in writing, and Licensee shall cease all use of the Software and Documentation.
- Survival. Notwithstanding the termination of this Agreement for any reason, all rights, obligations, and representations, which by their nature are intended to survive, shall survive and remain in effect, including Sections 2.2, 4, 5, 6, 7, 9 and 11.
- In General. Each party understands and agrees that in the other party’s performance of its duties and exercise of its rights hereunder, such party will communicate certain confidential and proprietary information concerning the Software, future products, know-how, technology, techniques, business affairs or marketing plans (hereinafter collectively referred to as “Know-How”). Neither party shall use the Know-How of the other for any purpose other than the performance of this Agreement. To the extent such information is confidential and proprietary to, and trade secrets of, the party disclosing such information, all such disclosures are made in utmost confidence. Except as expressly authorized herein, each party agrees to hold all the Know-How within its own organization and shall not, without specific prior written consent of the disclosing party, or as otherwise authorized herein, utilize in any manner, publish, communicate or disclose any part of such Know-How to third parties. Each party will take all reasonable steps to protect the security, confidentiality and trade secret status of the Know-How and will take such steps as are consistent with protection of its own confidential and proprietary information (but will in no event exercise less than reasonable care) to ensure that the provisions of this Agreement are not violated by such party’s employees, agents or any other person to whom such has made lawful disclosure hereunder. A party’s obligations with respect to a particular portion of the Know-How will cease if and when that portion (i) becomes part of the public domain without any wrongful act attributable to such party; (ii) is lawfully received by such party from a third party without violation of this Agreement or any similar agreement; (iii) is approved for release by written authorization of the other party; (iv) is already known by such party as evidenced by its written records; or (v) is independently developed by such party, provided that the person or persons responsible for development did not have access to the Know-How. Additionally, the foregoing obligation of nondisclosure shall not apply to the extent a court requires disclosure of Know-How so long as the disclosing party uses reasonable efforts to resist such disclosure without a protective order.
- Software. For the avoidance of doubt, the Software and Documentation, including any modifications to any of the foregoing, shall be exclusively the Know-How of ScientiaMobile. Licensee agrees to take all reasonable steps to protect the security and confidentiality of all data, information, programs, systems, materials, techniques and/or procedures relating to the Software. Licensee further agrees not to remove or destroy any copyright or proprietary markings or confidential legends placed upon, or contained within, the Software and/or Documentation.
- Remedies. Each party acknowledges that the restrictions contained in this Section are reasonable and necessary to protect the other party’s legitimate interests, that remedies at law will be inadequate, that any violation of these restrictions will cause irreparable damage within a short period of time and that the non-breaching party will be entitled to injunctive relief against such violation. Each party further agrees that all confidentiality commitments hereunder shall survive the expiration or termination of this Agreement or the license granted herein.
- WARRANTY DISCLAIMER. SCIENTIAMOBILE DOES NOT WARRANT THAT THIS SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. SCIENTIAMOBILE EXCLUDES AND EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES NOT STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT.
- LIMITATION OF LIABILITY. SCIENTIAMOBILE’S LIABILITY TO LICENSE FOR ANY AND ALL LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, AND SHALL NOT IN ANY EVENT EXCEED ONE HUNDRED DOLLARS. IN NO EVENT WILL SCIENTIAMOBILE BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) EVEN IF SCIENTIAMOBILE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Export Controls. Licensee agrees that it will not directly or indirectly transfer the Software or Documentation to any country to which such transfer would be prohibited by the U.S. Export Administration Act, the regulations issued thereunder, or any other export control statute or regulation.
- Governing Law. This Agreement shall be construed under the laws of the State of Delaware, USA, without regard to its conflicts of laws principles. This Agreement is not to be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended, or any state adoption of the Uniform Computer Information Transactions Act, and the applicability of the foregoing is hereby expressly disclaimed by each of the parties.
- Binding Upon Successor and Assigns. None of the license rights and obligations of Licensee may be transferred, by operation of law or otherwise, to any entity (including any successor or affiliate of Licensee) except with the prior written consent of ScientiaMobile.
- Severability. If any provision of this Agreement, or the application hereof, shall for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and application of such provisions to other persons or circumstances shall be interpreted so as best to reasonably effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provisions.
- Entire Agreement. This Agreement and the exhibits hereto constitute the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto and thereto. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.
- Notice of Service. Each party shall promptly advise the other of any legal notices served on such party which might affect the other party or other party’s products.
- Notices. Whenever any party hereto desires or is required to give any notice, demand, or request with respect to this Agreement, each such communication shall be in writing and shall be effective only if it is delivered by an established carrier service (e.g., Federal Express, DHL, etc.), personal service or mailed, United States certified mail, postage prepaid, return receipt requested, to the address set forth on the first page of this Agreement or such other known physical address of the party if such party has relocated from the address set forth therein. Such communications shall be effective when they are received by the addressee thereof; but if sent by certified mail in the manner set forth above, they shall be effective five (5) calendar days after being deposited in the United States mail . Any party may change its address for such communications by giving notice thereof to the other party in conformity with this Section.
- No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. No party shall have the power to control the activities and operations of any other, and their status is, and at all times, will continue to be, that of independent contractors with respect to each other. No party shall have any power or authority to bind or commit any other. No party shall hold itself out as having any authority or relationship in contravention of this Section.
- Further Assurances. Each party agrees to cooperate fully with the other parties and to execute such further instruments, documents and agreements and to give such further written assurances, as may be reasonably requested by any party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement.