PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE ACCOMPANYING LICENSED SOFTWARE. THIS END USER SOFTWARE LICENSE AGREEMENT (THIS "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND OPENWAVE SYSTEMS INC. (HEREINAFTER "OPENWAVE") WITH A REGISTERED OFFICE AT 2100 SEAPORT BOULEVARD, REDWOOD CITY CA 94063. BY DOWNLOADING, INSTALLING, OR USING THE LICENSED SOFTWARE OR RELATED DOCUMENTATION ACCOMPANYING THIS AGREEMENT YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE OR DOCUMENTATION.
1. Definitions.
1.1 "Licensed Software" means the Openwave proprietary software commercially known as Openwave® Multimedia Messaging Developer SDK Version 1.0 including Updates made available during the Term.
1.2 "Developed Applications" means any applications developed by you using the Licensed Software.
1.3 "Documentation" means the materials, in any format, made available to you regarding the installation, use, operation, functionality, troubleshooting and other technical information about the Licensed Software.
1.4 "Java Archive File ("JAR")" means a standard ZIP format file, plus an optional manifest file describing the JAR contents.
1.5 "Updates" means corrections, updates, substitutions, upgrades, patches, improvements, enhancements, or new versions of the Licensed Software.
2. License. Subject to the terms of this Agreement, Openwave grants to you a nonexclusive, royalty free, non-transferable, worldwide license to (i) use the Licensed Software, in Java Archive File format only, for development, internal testing and debugging of the Developed Applications; (ii) make two (2) copies of the Licensed Software, in Java Archive File format, for your internal development purposes and two (2) additional copies for backup purposes; and (iii) use and make one (1) copy of the Documentation for internal reference purposes. You may integrate the Licensed Software, in Java Archive File format only, with Developed Applications and use, reproduce, sublicense, and distribute the resulting Developed Applications containing the Licensed Software for commercial production and deployment purposes provided you at all times comply with Section 3.2.
3. Restrictions.
3.1 You may not, except as expressly allowed in this Agreement (a) decompile, reverse engineer, disassemble or otherwise reduce the Licensed Software to a human-perceivable form; (b) modify, adapt, alter, translate or create derivative works from the Licensed Software or Documentation; (c) merge the Licensed Software with other software; (d) sublicense, network, rent, lease, loan, or distribute the Licensed Software in whole or in part; or (e) otherwise use or copy the Licensed Software or Documentation. To the extent that local law grants you the right to decompile software in order to obtain information necessary to render the software interoperable with other software, you will first request Openwave in writing to provide you with the necessary information. Openwave has the right to impose reasonable conditions such as a reasonable fee for doing so. Requests for information should be directed to Openwave at the address provided in Section 13 below.
All rights in and to the Licensed Software and the Documentation not expressly granted to you in Section 2 of this Agreement are reserved by Openwave and its suppliers.
3.2 You may only use, sublicense or distribute the Licensed Software for commercial purposes so long as the Licensed Software is at all times integrated with the Developed Applications. Developed Applications must perform a function materially different than the Licensed Software. Any sublicense or distribution of the Licensed Software to your customers must be according to a written agreement that includes terms that are substantially similar to those contained in this Agreement.
4. Proprietary Rights. You acknowledge that the Licensed Software and Documentation and their structure, organization and source code, contain copyrighted material, trade secrets and other proprietary material and that such Licensed Software and Documentation is owned by Openwave and its suppliers and protected by U.S. laws and international treaty provisions. You agree to protect all copyright and other ownership interests of Openwave and/or its suppliers in all items in the Licensed Software supplied under this Agreement. You agree that all copies of the items in the Licensed Software and Documentation, reproduced for any reason by you, contain the same copyright notices, and other proprietary notices as appropriate, as appear on or in the master items in the Licensed Software and Documentation, and the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist. As between you and Openwave, you will own all right, title and interest in any Developed Applications, excluding any Licensed Software.
5. Termination. This Agreement is effective until terminated ("Term"). You may terminate this Agreement at any time by destroying the Licensed Software and all copies thereof. This Agreement will terminate immediately without notice if you fail to comply with any of its provisions. Upon termination all rights granted in this Agreement shall immediately cease to exist and you must promptly discontinue all use of the Licensed Software and destroy the Licensed Software and all copies thereof. Each parties' rights and obligations under Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 will survive any termination or expiration of this Agreement.
6. Export Restrictions. By using the Licensed Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any country to which the U.S. has embargoed goods. You agree that you will not export or "re-export" (transfer) the Licensed Software or any product that contains the Licensed Software unless you have complied with all applicable United States and foreign government export controls and approvals. For additional information with respect to the United States export controls, you may wish to visit the U.S. Bureau of Export Administration's web site at: http://www.bxa.doc.gov. You are also advised to consult legal counsel concerning the applicability of the Export Administration Regulations to your particular product and proposed export.
7. Disclaimer Of Warranty.
7.1 YOU ACKNOWLEDGE AND AGREE THAT THE LICENSED SOFTWARE AND ANY PARTS THEREOF ARE PROVIDED TO YOU ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY OF ANY KIND. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, TITLE, AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHT WITH RESPECT TO THE LICENSED SOFTWARE OR ANY SERVICES RELATED TO THE LICENSED SOFTWARE ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
7.2 NO WARRANTY OR REPRESENTATION IS GIVEN THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED. FURTHERMORE, NO WARRANTY OR REPRESENTATION IS GIVEN REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED SOFTWARE OR RELATED DOCUMENTATION. OPENWAVE MAKES NO REPRESENTATION WITH RESPECT TO THE ADEQUACY OF THE LICENSED SOFTWARE USED IN THE DEVELOPMENT OF DEVELOPED PRODUCTS FOR ANY PARTICULAR PURPOSE OR WITH RESPECT TO ITS ADEQUACY TO PRODUCE ANY PARTICULAR RESULT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON OR ENTITY SHALL CREATE A WARRANTY OR REPRESENTATION OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
7.3 Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. You may have rights which vary from state to state or jurisdiction to jurisdiction. The foregoing does not affect or prejudice your statutory rights. To the extent permissible, any implied warranties are limited to ninety (90) days.
8. No Other Obligations. This Agreement creates no obligations on the part of Openwave other than as specifically set forth herein. Specifically, and without limitation, this Agreement creates no training, maintenance or service obligations, or any obligation on the part of Openwave to provide Updates to the Licensed Software.
9. Limitation of Liability. Notwithstanding any other provisions of this Agreement, Openwave's liability to you under this Agreement will be limited to the amounts paid by you for the Licensed Software. UNDER NO EVENT AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL OPENWAVE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, COSTS, FEES OR EXPENSES OF ANY KIND OR NATURE ARISING OUT OF ANY PROVISION OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, DOCUMENTATION, OR ANY DATA SUPPLIED THEREWITH, EVEN IF OPENWAVE OR AN OPENWAVE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY PARTY. OPENWAVE AND ITS SUPPLIERS WILL NOT BE LIABLE FOR LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT OR FROM THE DISTRIBUTION OR USE OF DEVELOPED PRODUCTS CONTAINING ANY PORTIONS OF THE LICENSED SOFTWARE. THIS LIMITATION OF LIABILITY IS FUNDAMENTAL TO THE BASIS OF THE BARGAIN AND OPENWAVE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH LIMITATION. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitation or exclusion may not apply to you. Nothing contained in this Agreement will prejudice the statutory rights of any party dealing as a consumer.
10. Indemnification. You agree to indemnify, hold harmless, and defend Openwave from and against any claims, damages, lawsuits, or expenses, including attorneys' fees, that arise or result from the use or distribution of Developed Applications containing the Licensed Software, provided that Openwave gives you prompt written notice of any such claim, tenders to you the defense or settlement of such a claim at your expense and cooperates with you, at your expense, in defending or settling such claim.
11. U.S. Government Restricted Rights. You agree that any Developed Application that includes the Licensed Software will include in its license agreement a reference to applicable U.S. Government regulations that control licensing of software.
If you are a branch or agency of the United States Government, the following provision applies. The Licensed Software is comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).
12. Controlling Law and Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the parties submit to the non-exclusive jurisdiction of the California courts. The United Nations Convention on Contracts for the International Sale of Goods, or any law, rule or regulation of any jurisdiction based on any of the foregoing, do not apply to this Agreement. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect (i) the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or (ii) the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
13. General. Should you have questions regarding this Agreement, please write to: Openwave Systems Inc., 2100 Seaport Boulevard, Redwood City, CA 94063, Attn: Legal Department. All waivers must be in writing. Any waiver or failure to enforce this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You may not assign your rights or obligations granted under this Agreement without the prior written consent of Openwave. Any attempted assignment or transfer without such prior written consent from Openwave shall be null and void. The headings of sections of this Agreement are for convenience only and are not to be used in interpreting this Agreement. In the event Openwave is required to initiate legal proceedings to enforce any provision of this Agreement or you initiate any legal proceedings relating to this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees from the other party. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may only be modified in a signed writing by an authorized officer of Openwave.
Openwave® Multimedia Messaging Developer SDK Version 1.0 End User Software License Agreement
January 15, 2003