.LICENSE-EVALUATION-US

EVALUATION LICENSE AGREEMENT
Agreement version 2.0

This Evaluation License Agreement ("Agreement") is a legal agreement between Digia USA, Inc. ("Digia"), with its registered office at 32 W. Loockerman Street, Suite 201, City of Dover, County of Kent, Delaware 19904, U.S.A. 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.  
"Term" shall mean the period of time thirty (30) days from the later of (a) the Effective Date; or (b) the date the Licensed Software was initially delivered to Licensee by Digia.  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.
"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 Digia to Licensee in conjunction with this Agreement.
"Nokia” shall mean Digia Plc, a corporation incorporated under the laws of Finland, having its registered office at PO box 226, 00045 Nokia Group, Finland (visiting address Keilalahdentie 4, 02150 Espoo, Finland) and registered with the Finnish Trade Register under business ID 0112038-9 and acting on behalf of its respective Affiliates.
"Party or Parties" shall mean Licensee and/or Digia.

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.  
If Licensee provides any findings, proposals, suggestions or other feedback ("Feedback") to Digia regarding the Licensed Software, Digia shall own all right, title and interest including the intellectual property rights in and to such Feedback, excluding however any existing patent rights of Licensee. To the extent Licensee owns or controls any patents for such Feedback Licensee hereby grants to Digia and its Affiliates,  a worldwide, perpetual, non-transferable, sublicensable, royalty-free license to (i) use, copy and modify Feedback and to create derivative works thereof, (ii) to make (and have made), use, import, sell, offer for sale, lease, dispose, offer for disposal or otherwise exploit any products or services of Digia containing Feedback, and (iii) sublicense all the foregoing rights to third party licensees and customers of Digia and/or its Affiliates.

3.	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 may not install, copy, or otherwise use the Licensed Software. Upon Licensee's acceptance of the terms and conditions of this Agreement, Digia grants Licensee the right to use the Licensed Software in the manner provided below.

4.	LICENSES
4.1.	Using and Copying
Digia grants to Licensee a non-exclusive, non-transferable, time-limited license to use and copy the Licensed Software for sole purpose of evaluating the Licensed Software during the Term. 
Licensee may install copies of the Licensed Software on an unlimited number of computers provided that (a) if an individual, only such individual; or (b) if a legal entity only its employees; use the Licensed Software for the authorized purposes.

4.2	No Distribution or Modifications
Licensee may not disclose, modify, sell, market, commercialise, distribute, loan, rent, lease, or license the Licensed Software or any copy of it or use the Licensed Software for any purpose that is not expressly granted in this Section 4. Licensee may not alter or remove any details of ownership, copyright, trademark or other property right connected with the Licensed Software. Licensee may not distribute any software statically or dynamically linked with the Licensed Software.

4.3	No Technical Support
Digia has no obligation to furnish Licensee with any technical support whatsoever. Any such support is subject to separate agreement between the Parties.
4.4	Further Requirements
It is expressly acknowledged and understood by Licensee, that Licensee is strictly prohibited from using Licensed Software for creation of mobile phones or tablet computers targeted for consumer end users. 
Notwithstanding anything contrary to this Agreement, it is expressly acknowledged and understood by Licensee, that Nokia shall hereby be named as a third party beneficiary under this Agreement with respect to this Section 4.4. Therefore, Nokia shall have the same rights as Digia under this Agreement with respect to this Section 4.4, and shall be entitled to exercise such rights independent from Digia. 
5.	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 (1) that some part of Third Party Software may require additional licensing of copyright and patents from the owners of such, and (2) that distribution of any of the Licensed Software referencing any portion of a Third Party Software may require appropriate licensing from such third parties.  

6.	LIMITED WARRANTY AND WARRANTY DISCLAIMER
The Licensed Software is licensed to Licensee "as is". To the maximum extent permitted by applicable law, Digia 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, fitness for a particular purpose, title and non-infringement with regard to the Licensed Software.

7.	LIMITATION OF LIABILITY 
If, Digia's warranty disclaimer notwithstanding, Digia is held liable to Licensee, whether in contract, tort or any other legal theory, based on the Licensed Software, Digia's entire liability to Licensee and Licensee's exclusive remedy shall be, at Digia'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 Digia all copies of the Licensed Software as originally delivered to Licensee. Digia 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 Digia 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 Digia to Licensee shall not exceed the total amount Licensee has paid to Digia in connection with this Agreement. 

8.	CONFIDENTIALITY
Each party acknowledges that during the 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 Digia and Licensee conflict with the terms of this Section 8, this Section 8 shall be controlling over the terms of the Non-Disclosure Agreement.

9.	GENERAL PROVISIONS
9.1	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 Digia, which shall not be unreasonably withheld. For the avoidance of doubt, Digia's right to assign or transfer the Agreement, in whole or in part, shall be unrestricted.

9.2 	Termination
Digia may terminate the Agreement at any time immediately upon written notice by Digia to Licensee if Licensee breaches this Agreement.  

Upon termination of this Agreement, Licensee shall return to Digia all copies of Licensed Software that were supplied by Digia. 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 Digia a written confirmation that this has occurred.
9.3	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, 6, 7, 8, 9.2, 9.3, 9.4, 9.5, 9.6, 9.7, and 9.8 of this Agreement.  

9.4	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 8. 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 Digia 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.
	
9.5. 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 Digia shall be given to: 
Digia USA, Inc
2350 Mission College Blvd.
Suite 1020
Santa Clara, CA 95054 
U.S.A.
Fax: + 1 408 433 9360

9.6	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 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., 

9.7	Governing Law and Legal Venue
This Agreement shall be governed by and construed in accordance with the federal laws of the United States of America and the internal laws of the State of New York without given effect to any choice of law rule that would result in the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Each Party (a) hereby irrevocably submits itself to and consents to the jurisdiction of the United States District Court for the Southern District of New York (or if such court lacks jurisdiction, the state courts of the State of New York) for the purposes of any action, claim, suit or proceeding between the Parties in connection with any controversy, claim, or dispute arising out of or relating to this Agreement; and (b) hereby waives, and agrees not to assert by way of motion, as a defence or otherwise, in any such action, claim, suit or proceeding, any claim that is not personally subject to the jurisdiction of such court(s), that the action, claim, suit or proceeding is brought in an inconvenient forum or that the venue of the action, claim, suit or proceeding is improper.  Notwithstanding the foregoing, nothing in this Section 9.6 is intended to, or shall be deemed to, constitute a submission or consent to, or selection of, jurisdiction, forum or venue for any action for patent infringement, whether or not such action relates to this Agreement.

9.8	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 Digia and its licensors. In addition, no licenses or immunities are granted to the combination of the Licensed Software with any other software or hardware not delivered by Digia under this Agreement.

9.9	Government End Users 
 A "U.S. Government End User" shall mean any agency or entity of the government of the United States.  The following shall apply if Licensee is a U.S. Government End User.  The Licensed Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Licensed Software with only those rights set forth herein.  The Licensed Software (including related documentation) is provided to U.S. Government End Users: (a) only as a commercial end item; and (b) only pursuant to this Agreement.






EVALUATION LICENSE AGREEMENT

DIGIA USA INC. | SUITE 203 | 2880 ZANKER ROAD | SAN JOSE | CA 95134 | U.S.A. |
FAX + 1 408 433 9360
PLACE OF REGISTERED OFFICE: DELAWARE | WWW.DIGIA.COM