By clicking “I agree” when you downloaded this Software, or by installing the Software if you obtained the Software other than through registering at a page on the website located at www.scientiamobile.com, you are agreeing to the terms of this Evaluation “Agreement” on behalf of the entity for whom the Software is being used or you personally (in either case as applicable, referred to herein as “Licensee”).
The following terms, when capitalized and used in this Agreement, shall have the following meanings:
1.1 “Documentation” means the most current version of the documentation for the Software.
1.2 “Licensed Usage” means a permitted use with respect to which you are evaluating the Software. The Licensed Usage may be an online service sold by Licensee to its customers through an application (such as but not limited to a website or a mobile app) or other platform so long as such application or platform does not constitute a prohibited use as specified in Section 4.
1.3 “Platforms” means only those of the Java, Scala, PHP, or .Net platforms for which you have downloaded or otherwise acquired the Software.
1.4 “ScientiaMobile” means ScientiaMobile, Inc., a Delaware corporation with offices located at 1875 Campus Commons Drive, Suite 302, Reston, VA 20191.
1.5 “Software” means the version of the software known as WURFL OnSite consisting of a database and application programming interfaces designed to run on the Java, Scala, PHP, or .Net platform. Licensee acknowledges that the database component of the Software acquired pursuant to this Agreement may be a degraded version of the database that is provided in connection with an Agreement not intended for evaluation purposes only.
2 License and Retention of Rights.
2.1 License. Licensee is granted the following non-exclusive, non-transferable, non-assignable, limited rights to the Software during the Term:
(a) Right to Install and Use for Evaluation Purposes Only. Licensee may install and use the Software only during the Term solely for the purpose of evaluating the Software for future commercial use in support of the Licensed Usage. Such evaluation may be in a commercial setting so long as the evaluation is limited to the reasonable duration necessary for Licensee to determine whether the Software is suitable for Licensee’s purpose and thereafter Licensee ceases use of the Software until such time as it acquires a commercial license to the Software.
(b) Third Party Implementation. Licensee may engage subcontractors to implement the Software on behalf of Licensee for such evaluation subject to Licensee requiring that, prior to accessing the Software, each such subcontractor agrees in writing to a nondisclosure and nonuse clause with respect to Know-How at least as protective of Know-How as the provisions of Section 7 and any use of the Software by such independent contractor is solely for the benefit of Licensee.
2.2 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. 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. Licensee acknowledges that the Software may communicate with ScientiaMobile for the purpose of providing information useful for improving the Software and understanding how and when it is used.
3.1 Online Support Forum. ScientiaMobile in its discretion may elect to provide you access to an online support forum for the Software available on the World Wide Web and reachable from ScientiaMobile’s website, presently located at www.scientiamobile.com. No other support is provided and Licensee in any event uses the Software at its own risk.
4 Prohibited Uses.
Licensee shall not (and any such prohibited use shall constitute a breach of this Agreement and an infringement of the Software and/or Documentation):
(a) Use, copy, modify or merge copies of the Software or Documentation except as specifically permitted in this Agreement;
(b) Sublicense, lend, lease, rent, resell use, distribute, assign or otherwise transfer the Software or any other rights licensed hereunder;
(c) use the Software with a content management, publishing, developer, ad network, or similar application or platform where such platform is to be operated for the benefit of a third party, or to support an application service provider, internet service provider, hosting or similar, business;
(d) use the Software for analytical purpose other than to evaluate the capability of the Software to facilitate the collection of data for analytical purposes; and/or
(e) use the Software, including its database component, or any logs generated using the Software, to identify user-agent strings for the purposes of creating, training or otherwise improving a product that could be used to provide some or all of the functionality and/or data provided by the Software.
5 Term and Termination.
5.1 Term. This Agreement shall commence on the date Licensee registered to download the Software or if Licensee otherwise came into possession of the Software, the date Licensee first installed the Software and shall continue for thirty days (the “Term”). Upon conclusion of the Term Licensee shall immediately uninstall the Software and, at any time thereafter upon written request of ScientiaMobile, shall have an officer of Licensee certify that the Software is no longer being used by Licensee.
5.2 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 (including using a database other than was distributed with the Software) and Licensee does not cease such use within two (2) business days after receipt of such notice.
5.3 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.
5.4 Effect of Termination. Upon termination of this Agreement Licensee will immediately destroy any Know-How (as defined in Section 7.1) of ScientiaMobile in Licensee’s possession or control, and Licensee shall cease all use of the Software and Documentation.
5.5 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, 8 and 9.
6.1 In General. Licensee understands and agrees that any proprietary information concerning the Software, future products, know-how, technology, techniques, business affairs or marketing plans (hereinafter collectively referred to as “Know-How”) made available to it shall be treated as confidential. Licensee shall use the Know-How only for the purpose of evaluating the Software. Except as expressly authorized herein, Licensee agrees to hold all the Know-How within its own organization and shall not, without specific prior written consent of ScientiaMobile, or as otherwise authorized herein, utilize in any manner, publish, communicate or disclose any part of such Know-How to third parties. Licensee 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 Licensee’s employees, agents or any other person to whom such has made lawful disclosure hereunder. Licensee’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 Licensee; (ii) is lawfully received by Licensee from a third party without violation of this Agreement or any similar agreement; (iii) is approved for release by written authorization of the ScientiaMobile; (iv) is already known by Licensee as evidenced by its written records; or (v) is independently developed by Licensee, provided that the person or persons responsible for development was constructively walled-off from having 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.
6.2 Software. For the avoidance of doubt, the Software and Documentation 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.
6.3 Remedies. Licensee acknowledges that the restrictions contained in this Section are reasonable and necessary to protect ScientiaMobile’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 ScientiaMobile will be entitled to injunctive relief against such violation without posting of any bond. Licensee further agrees that all confidentiality and other commitments regarding Know-How hereunder shall survive the expiration or termination of this Agreement or the license granted herein.
7 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 AND ITS LICENSORS EXCLUDE AND EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES NOT STATED HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT.
8 LIMITATION OF LIABILITY.
SCIENTIAMOBILE’S AND ITS LICENSORS’ LIABILITY TO LICENSEE FOR ANY AND ALL LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, AND SHALL NOT EXCEED THREE TIMES THE AMOUNT LICENSEE PAID UNDER THIS AGREEMENT IN THE YEAR IN WHICH SUCH LIABILITY AROSE. 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.
9.1 United States Government Restricted Rights. The enclosed Software and Documentation are provided with Restricted Rights unless provided pursuant to 18 C.F.R. 252.227-7202. For purposes of defining the term “Licensee” herein, the most restrictive definition of the scope of the agency or instrumentality will be applied to the section of the government that has licensed the Software hereunder as it is not the intent that one agency or instrumentality may license the Software for use by the entire government under this Agreement. Use, reproduction or disclosure by the U.S. Government or any agency or instrumentality thereof is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 48 C.F.R. 252.227-7014, or in subdivision (c)(1) and (2) of the Commercial Computer Software Restricted Rights Clause at 48 C.F.R. 52-227-19, as applicable.
9.2 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.
9.3 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.
9.4 Binding Upon Successor and Assigns. This Agreement, including any of the license rights, may not be assigned or otherwise transferred through a Change in Control to any entity (including any successor or affiliate of Licensee), except with the prior written consent of ScientiaMobile. “Change of Control” means the (a) consolidation, merger, share exchange or other business combination involving Licensee in which immediately following such transaction less than 50 percent of the voting power of the surviving parent entity immediately following the closing of the transaction is held by persons who were shareholders of Licensee immediately prior to the closing of the transaction, (b) sale, transfer or other disposition of all or substantially all of the assets of Licensee or (c) acquisition by any entity, or group of entities acting in concert, of beneficial ownership of 50 percent or more of the outstanding voting securities or other ownership interests of Licensee, provided, however, that such ownership constitutes Control of such Party. “Control” means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise. Licensee shall not delegate any of its obligations under this Agreement without the prior written consent of ScientiaMobile. Any purported assignment or transfer in violation of this obligation shall be deemed void and of no force or effect. Licensee acknowledges that the license fee payable under this Agreement were determined taking into account among other things the use contemplated by Licensee and the size of Licensee’s business supported by the Software. Notwithstanding anything else to the contrary in this Agreement, in the event of any ScientiaMobile-approved Change of Control, a condition to such approval may include a new license fee to account for anticipated changes in the size and business of Licensee after such Change in Control.
9.5 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.
9.6 Force Majeure. Failure on the part of either party to perform its obligations under this Agreement, if occasioned in whole or in part by any act of God, any act of the public enemy, fire, explosion, perils of sea, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition or allocation or any action of any governmental authority, or shortage or failure of supply of materials or labor, or strikes or other labor trouble, or any occurrence, act, course or thing beyond the control of said party where such party has exercised reasonable care in the prevention of such event, shall excuse said party from its obligations and said party shall have no obligations or liability in any amount arising out of or in connection with the failure.
9.7 Entire Agreement. This Agreement constitutes 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.
9.8 Amendment and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by both parties.
9.9 No Waiver. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.
9.10 Other Remedies. Any and all remedies herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law, and the exercise of any one remedy shall not preclude the exercise of any other. Neither the termination of this Agreement, nor the waiver of any right to terminate under this Agreement, shall limit any other remedies which ScientiaMobile may have for a default of this Agreement by Licensee. ScientiaMobile shall have the right upon reasonable notice to inspect or have its representatives inspect all usage of the Software by Licensee at all locations at which the Software is used by Licensee to confirm Licensee’s compliance with the terms of this Agreement.
9.11 Dispute Resolution. In the event of any problem, claim, or dispute arising from this Agreement, the aggrieved party shall promptly notify the other party of the existence of the problem, claim, or dispute, and such party shall promptly undertake all reasonable efforts to resolve the matter within thirty (30) calendar days of such notice. If such efforts are not successful, senior executives of each of the parties shall meet promptly thereafter to resolve the matter amicably, and each party shall exert its reasonable best efforts toward this solution. If the matter cannot be resolved through this process, then (i) if Licensee is an entity organized in a United States state, commonwealth or territory or other governmental authority under the control of the United States (where organized excludes foreign entities merely licensed or otherwise authorized to do business in a United States jurisdiction), or a citizen of the United States if not an entity, the parties hereby consent to the jurisdiction of the state and federal courts located in the State of Delaware and a claim may be brought therein or in any other state or federal court of competent jurisdiction in the United States; or (ii) otherwise, the parties shall submit the matter to binding arbitration, in accordance with the commercial arbitration rules (the “Rules”) of the American Arbitration Association. Such arbitration shall be held in the District of Columbia, Washington, DC, in the United States of America and shall utilize a single arbitrator selected by the AAA in accordance with the Rules. Each party shall bear one-half of the costs of the arbitration. Judgment upon the award rendered by the arbitrator shall be final and non-appealable and may be entered in any court having jurisdiction thereof. Nothing in this Section shall preclude either party from seeking interim or provisional relief from a court of competent jurisdiction, including a temporary restraining order, preliminary injunction or other interim equitable relief, concerning a dispute either prior to or during any dispute resolution procedure in accordance with this Section if necessary to protect the interests of such party or to preserve the status quo pending the resolution of such dispute.
9.12 Construction of Agreement. This Agreement has been freely negotiated at arm’s length by the respective parties hereto and the language hereof shall not be construed either for or against any party.
9.13 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.
9.14 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.
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