EXHIBIT D. MultiTouch Software Development Kit (SDK) License Agreement

Transcription

1 EXHIBIT D MultiTouch Software Development Kit (SDK) License Agreement This Software Development Kit (the SDK ) License Agreement ( Agreement ) is made by and between Multi Touch Oy, Henry Fordin katu 6 B, Helsinki, Finland (hereinafter MULTITOUCH ); and the Customer party of the relevant Multi Touch agreement (hereinafter LICENSEE ). MULTITOUCH AND LICENSEE hereinafter alone a Party or jointly Parties. WHEREAS, MULTITOUCH has developed certain technology and software development tools related to multi-touch displays and wishes to authorize LICENSEE to use MULTITOUCH s software development tools in accordance with this Agreement; WHEREAS, LICENSEE desires to obtain the right to use the software development tools in accordance with this Agreement. NOW, THEREFORE, the Parties hereby agree as follows: 1. Software Development Kit The SDK to be delivered to LICENSEE and to be covered by this Agreement is specified in Appendix Grant of License MULTITOUCH hereby grants the LICENSEE and the LICENSEE accepts for the term of this Agreement a limited non-exclusive, royalty-free, worldwide, non-transferable license to use the SDK and relating documentation, provided that the LICENSEE complies with all terms and conditions of this Agreement. The license is granted for the sole purpose of LICENSEE to develop its own applications and to distribute such applications to its customers. LICENSEE accepts that all information gained about the SDK is valuable property of MULTITOUCH and as such must be treated in accordance with section 11 of this Agreement. 3. License Restrictions Each individual license authorizes one named developer to develop applications. If LICENSEE needs to develop applications with multiple developers, LICENSEE must purchase an additional number of licenses. LICENSEE shall have no right to modify, alter, transfer, resell or distribute the SDK or any part of it, nor use it for any other purposes than set forth in this Agreement. LICENSEE shall have no right to make or distribute copies of the SDK, or electronically transfer the SDK to a third party. 1

2 LICENSEE agrees that it will not unlock, decompile, reverse-engineer, disassemble or otherwise translate any object code portion of the SDK to a human-perceivable form, nor permit any person or entity under its employ or control to do so. LICENSEE may not sub-license, assign, commercially distribute, or otherwise share the license with any third party. LICENSEE shall not remove, alter, cover, or obscure any confidentiality, trade secret, proprietary, or copyright notices, trademarks, patent, or other identifying marks or designs from any component of the SDK. 4. Delivery of the SDK MULTITOUCH will deliver the SDK by a suitable way designated by MULTITOUCH after signing of this Agreement. MULTITOUCH will provide LICENSEE with reasonable installation instructions if necessary and requested by the LICENSEE. Unless otherwise agreed, LICENSEE shall be responsible for installation. 5. Fees The one-time fee for the license grant is defined in Appendix 2. The fee includes the number of licenses agreed by the Parties. The fee includes free SDK updates for the version of the SDK authorized for use by LICENSEE for one (1) year, excluding any beta versions that MULTITOUCH may release from time to time. Following this oneyear period the LICENSEE can purchase separate maintenance or upgrade services as defined in Appendix 2. The term of payment is fourteen (14) days net. Late payment penalty is 12% per annum. 6. Support and Maintenance This Agreement includes new software releases and updates of the version of the SDK authorized for use by LICENSEE for a period of one (1) year from the signing of this Agreement, excluding any beta versions that MULTITOUCH may make available from time to time. Any support and/or maintenance required in connection with the version of the SDK authorized for use by LICENSEE may be purchased separately in accordance with Appendix 2 of this Agreement. The use of any improvements, modifications or updates received by LICENSEE shall be governed by the terms and conditions contained in this Agreement. 7. Intellectual Property Rights MULTITOUCH and its licensors own and shall continue to own all right, title and interest in and to the SDK, including all copies thereof (including also upgrades, updates and other modifications delivered in accordance with section 6 of this Agreement and information delivered by MULTITOUCH to LICENSEE pursuant to this Agreement, including all intellectual property rights under patent laws, copyright laws, international copyright treaties and trade secret laws, as well as 2

3 other intellectual property laws. Nothing in this Agreement shall alter these ownership interests nor act as a conveyance of such ownership interests. Intellectual property rights with respect to new features and functions MULTITOUCH may develop to LICENSEE shall be agreed in a separate development agreement. The works developed by LICENSEE using the SDK ( Derivative Works ) shall be owned by the LICENSEE, subject to MULTITOUCH s underlying rights in and to the SDK. LICENSEE covenants not to sue MULTITOUCH on those intellectual property rights, which may be infringed by the LICENSEE when implementing the SDK within the touch-screen technology. 8. Warranties MULTITOUCH warrants that it has full power and right to license the SDK under this Agreement and perform all other obligations under this Agreement. MULTITOUCH warrants that the SDK will operate substantially in conformity with the documentation delivered in connection with the SDK. MULTITOUCH does not warrant that the SDK will not infringe any third party s rights or that the SDK will meet LICENSEE's requirements, that the SDK will operate in the combinations that LICENSEE may select for use, that the operation of the SDK will be uninterrupted or free or errors, or that all errors will be corrected. DISCLAIMER: EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. The above warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, or any temporary software modules. All such software products are provided AS IS without any warranty whatsoever. 9. Non-Competition LICENSEE warrants that it will not use the SDK for developing solutions or applications that compete with MULTITOUCH s technology. Notwithstanding the foregoing, LICENSEE may develop, test, use and deploy competing technologies without using the SDK. 3

4 10. Indemnity and Limitation of Liability LICENSEE shall indemnify, defend and hold MULTITOUCH harmless against any claims, actions, damages, losses, costs and expenditures, including but not limited to attorneys' fees and costs, incurred by MULTITOUCH as a result of any infringement or alleged infringement of any third party intellectual property rights arising out of or relating to use of the SDK or Derivative Works. Notwithstanding LICENSEE's primary right to have control over defense, (i) MULTITOUCH may take all necessary steps, at the expense of LICENSEE, to defend itself until LICENSEE, to the reasonable satisfaction of MULTITOUCH, assigns a counsel and initiates defense in a professional manner. IN NO EVENT SHALL MULTITOUCH, ITS EMPLOYEES, OFFICERS, DIRECTORS, SUPPLIERS, LICENSORS, OR THEIR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, USE 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, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF MULTITOUCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The maximum liability of MULTITOUCH shall in any case be limited to a sum, which equals fifteen (15) percent of the license fee received under this Agreement. 11. Confidentiality If nothing else has been agreed on between the Parties about non-disclosure of confidential information, the following provision shall be applied: Neither Party shall disclose to any person (other than its employees who have a need to know) or use for any purposes other than those necessary for the fulfillment of this Agreement any information received from the other Party, which is either indicated to be confidential or by its nature is such that the other Party knew or had a reason to know it to be confidential. The foregoing shall not apply to information that is publicly known or which either Party has received from a third party without any obligation of confidentiality or that has already been in the possession of the other Party prior to the disclosure hereunder or that has been independently developed by the other Party without any reference to information disclosed by first Party. LICENSEE agrees to use at least the same security measures as it uses to protect its own confidential and trade secret information, but no less than reasonable measures. The LICENSEE permits MULTITOUCH to use LICENSEE s name or logo as a reference in its non-public presentations. 4

5 For public reference use, such as print or websites, MULTITOUCH shall procure on a case by case basis LICENSEE s prior written or approval for any use of LICENSEE s business names, trademarks or other such marks. MULTITOUCH undertakes to follow all guidelines laid down by LICENSEE on the use of its business names and trademarks. Confidentiality obligations hereinabove shall survive termination, for any reason, of this Agreement. 12. Term and Termination This Agreement shall enter into force when the main agreement is duly signed by the LICENSEE and approved by MULTITOUCH and shall continue to be in force unless terminated pursuant to sections below. Each Party may terminate the Agreement with immediate effect if the other Party substantially breaches its obligations under the Agreement. Without prejudice to the generality of the foregoing, a breach shall always be considered substantial if the breaching Party has not corrected its conduct within thirty (30) days from the receipt of a written notice about the breach. Each Party may terminate the Agreement with immediate effect if the other Party is declared bankrupt or placed in liquidation. Upon the termination of this Agreement the license granted to LICENSEE shall terminate immediately and LICENSEE must, at the option of MULTITOUCH, either return all the material it has in its possession in connection with the SDK to MULTITOUCH or destroy it in a verifiable manner. 13. Force Majeure Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or nonperformance is due to an event of Force Majeure. By way of an example, and not as a limitation, events of Force Majeure are events beyond the control of the Party which occur after the time of signing of this Agreement and which were not reasonably foreseeable at the time of signing of this Agreement and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the Party concerned. Events of Force Majeure may include, but are not limited to, war, acts of government, natural disasters, fire and explosions. If an event of Force Majeure results in delay or non-performance of a Party for a period of three (3) months or longer, then either Party shall have the right to terminate this Agreement with immediate effect without liability towards the other Party. 5

6 14. Assignment LICENSEE may not assign or transfer the rights or obligations created through this Agreement without the prior written consent of the other Party. 15. No Waiver Failure by any Party at any time or times to require performance of any provisions of this Agreement shall in no manner affect its right to enforce the same, and the waiver by any Party of any breach of any provision of this Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof. 16. Governing Law and Jurisdiction This Agreement is governed by and shall be construed in accordance with the laws of Finland without giving effect to its conflict of laws provisions. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or invalidity thereof shall be finally settled in arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce. The arbitration shall be held in Helsinki and the arbitration proceedings shall be conducted in the English language. Notwithstanding the foregoing, either Party may seek preliminary, interim, or permanent injunctive relief or seek to enforce an arbitration award under this Agreement from any court having jurisdiction over the matter in dispute. Notwithstanding the aforesaid, either Party shall be entitled to initiate and pursue proceedings in any court of law for the purpose of collecting any receivable it may have as a result of this Agreement. 17. Entire Agreement. This Agreement terminates and supersedes all prior understandings or agreements, whether orally or in writing, on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. 18. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. 19. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. 6

7 20. Notice. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. If to MULTITOUCH: Petri Martikainen Chief Executive Officer Kiviaidankatu 2 B, Helsinki, Finland If to LICENSEE: [LICENSEE's name] [LICENSEE's adress] 21. Appendices This Agreement includes the appendices mentioned below. The provisions of this Agreement shall apply prior to the Appendices. Appendices of the Agreement: APPENDIX 1: Description of the SDK at cornerstone.multitouch.fi APPENDIX 2: Multitouch Price List 7