OZO LIVE SOFTWARE LICENSE AGREEMENT. (Single or Multi-Node License Agreement) Version 2.0

Transcription

1 OZO LIVE SOFTWARE LICENSE AGREEMENT (Single or Multi-Node License Agreement) Version 2.0 This License Agreement ( Agreement ) is a legal agreement between Nokia USA Inc., 200 S. Mathilda Ave., Sunnyvale CA ( Nokia ) and You ( Licensee ) for the Licensed Software (as defined below), effective from the date the Licensed Software was made available to You via a download link or similar means ( Effective Date ). 1. Definitions. 1.1 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. Notwithstanding the above, any entity that is directly or indirectly controlled by (a) Nokia Solutions and Networks B.V.; or (b) Alcatel Lucent S.A. is not an Affiliate of Nokia under this Agreement. 1.2 Content means the video and audio footage captured using Nokia s OZO Professional VR camera which Licensee has a right to broadcast. 1.3 Licensed Software means the OZO Live software in object code only, documentation, hardware reference design, and any updates that may be provided to Licensee by Nokia in accordance with this Agreement. Licensed Software does not include Open Source Software or Third Party Software (as defined below). 1.4 Licensed OZO Live Server means a single licensed machine processing Content. 1.5 Multi-Node License means the license type identified on the sales order or similar ordering document which permits the Licensee to use the Licensed Software on up to twenty (20) Licensed OZO Live Servers. For the avoidance of doubt, the Multi-Node License permits the processing of Content from a single event at any given time provided that the servers are in the same physical location, connected to the same subnet, and on the same LAN. 1.6 Open Source Software means any software, which is, as included with the Software, subject to a license terms and conditions currently listed at or meeting the criteria listed at or which is subject to any similar free or open source license terms. 1.7 OZO Live means the OZO Software application that enables Licensee to broadcast Content in real time. 1.8 Single-Node License means the license type identified on the sales order or similar ordering document which permits the Licensee to use the Licensed Software on a single Licensed OZO Live Server.

2 1.9 Term shall mean the period of time commencing on the Effective Date and continuing for the period stated on the Nokia order form, including any subsequent renewals, unless earlier terminated pursuant to the terms herein. 2. Use of the Software and Content. Subject to Licensee s compliance with the terms of this Agreement, Nokia hereby grants to Licensee, during the Term, a limited personal, non-exclusive, non-transferable, non-sublicensable, worldwide, license to use the Licensed Software on the number of Licensed OZO Live Servers (each owned or controlled by Licensee) identified in the sales order or similar ordering document as a Single-Node License or Multi-Node License for the sole purpose of broadcasting live Content. Licensee may make one additional copy of the Licensed Software for backup purposes, but except for the foregoing, may not install the Licensed Software on more servers than the number of Licensed OZO Live Servers authorized above. 3. Restrictions on Use and Limitations on Licensee s Rights. 3.1 As a condition to using the Licensed Software and notwithstanding anything to the contrary contained herein, Licensee hereby agrees that: (i) Licensee will not use the Licensed Software, including without limitation, broadcasting of any Content using the Licensed Software, in any manner or for any purpose that violates the terms and conditions of the Agreement or any applicable law or regulation, including without limitation, any intellectual property or other proprietary rights, any right of any person, rights of privacy, or rights of personality; (ii) Licensee will not use the Licensed Software in connection with any unlawful, abusive, harassing, or libelous Content or material; (iii) Licensee will not broadcast any Content to which Licensee does not have all of the rights necessary to broadcast the Content under applicable law, including without limitation, to all necessary copyrights, privacy rights, and rights of personality. (iv) Licensee s use of the Licensed Software does not and will not, violate, misappropriate, or infringe any rights of privacy or right of personality, of any third party or of Nokia; (v) Licensee will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by Licensee in connection with the Licensed Software or Content; (vi) Licensee will not remove or obscure any copyright or trademark notices or other similar notices, markings or legends from the Licensed Software; (vii) Licensee will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Licensed Software, except and only to the extent permitted by applicable mandatory law; (viii) Licensee will not use VLAN, tunneling, or other technical means to connect multiple machines to the same virtual LAN; and (ix) Licensee will not use any means to bypass the technical license restrictions included in the Licensed Software; and

3 (x) Licensee will not, copy (except as set forth in Section 2) modify or create derivative works of the Licensed Software; (xi) Licensee will not distribute, communicate to the public, export, re-export, sublicense, rent, loan, lease, disclose, sell, market, commercialise, re-license, host, or otherwise transfer or make available to any third party (including without limitation any Affiliates and subcontractors) the Licensed Software (or any portions thereof). (xii) except with express written consent from Nokia, Licensee will not use in advertising, publicity, or otherwise any trade name, trademark, service mark, or logo owned or used by Nokia or any of its Affiliates; (xiii) License will not use the Licensed Software, including without limitation, broadcasting of any Content using the Licensed Software, in a manner critical to health and/or security of other people and property (e.g. intended for surgery, or other applications intended to support or sustain life, or for any aviation) or manner in which the Licensed Software, or broadcast, or its failure, malfunction or inadequacy could directly or indirectly cause or contribute to personal injury or death or significant property damage. 3.2 Nothing in this Agreement prevents Nokia from developing, distributing, recording or broadcasting similar or competing Content at any time, including, without limitation, at the same time as Licensee. 4. Third Party Software. The Software may include or provide links to third party libraries or code (collectively "Third Party Software") to implement various functions. The Third Party Software and any additional terms and conditions applicable to such Third Party Software are listed at 5. Open Source Software. The software may contain Open Source Software and a complete listing of Open Source Software included in the Software is provided in the Documentation accompanying the Software and at To the extent the Software contains Open Source Software, such Open Source Software is governed by the terms and conditions accompanying such Open Source Software and not by the terms of this Agreement. If the license terms accompanying such Open Source Software allow Licensee to request a copy of such Open Source Software, please submit a request to Nokia by sending an to tech.legal@nokia.com. 6. Intellectual Property Rights. 6.1 The Licensed Software and all rights, without limitation including title and intellectual property rights therein, are owned by Nokia and/or its licensors and Affiliates and are protected by international treaty provisions and all other applicable national laws of the country in which it is being used, including, but not limited to, copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The structure, organization, and code of the Licensed Software are the valuable trade secrets and Confidential Information of Nokia and/or its licensors and Affiliates.

4 6.2 No right or license, express or implied, is granted to any part of the Licensed Software except as expressly set forth in this Agreement. In addition, no licenses or immunities are granted to the combination of the Licensed Software with any other Licensed Software or hardware not delivered by Nokia under this Agreement. Licensee acknowledges that the use of the Licensed Software may require licenses to Nokia or third party patents and that Nokia does not grant any licenses to such third party patents under this Agreement to Licensee. Any and all licenses with respect to Nokia or third party patents (including essential patents) are specifically excluded from the scope of this Agreement (even if such a right or license is necessary to exercise the rights expressly granted herein), and those licenses need to be acquired separately from Nokia or the respective right holders, as the case may be. 7. Fees 7.1 In consideration for the rights and licenses granted to Licensee in this Agreement, Licensee shall pay to Nokia the amount stated in the Nokia order form. Under no circumstances shall such sum or any portion thereof be refunded to Licensee or credited to other amounts due under this Agreement or applied toward amounts due under any other agreement. 8. Feedback. By submitting feedback ( Feedback ) to Nokia related to the Licensed Software, including but not limited to information on bug fixes or error corrections, information provided by Licensee in connection with customer support, new features, or other improvement, changes, or modifications, Licensee acknowledges and agrees that: (1) Nokia may have similar development ideas to the Feedback; (2) Licensee s Feedback does not contain confidential or proprietary information related to Licensee s own activities or those of any third party; (3) Nokia is not under any obligation of confidentiality with respect to the Feedback; and (4) Licensee is not entitled to any compensation of any kind from Nokia. Licensee hereby grants to Nokia a worldwide non-exclusive, sublicensable, assignable, fully paid up, royalty-free, perpetual and irrevocable license to: (i) use, reproduce, adapt, translate, exploit, copy, publicly perform, display, distribute, further develop and modify Feedback and to create derivative works thereof, or incorporate such Feedback into other works as well as sublicense products and services resulting from such works; (ii) to make, have made, use, import, sell, offer for sale, lease, dispose, offer for disposal or otherwise exploit any products or services containing Feedback; and (iii) sublicense all the foregoing rights to third party licensees and customers of Nokia and/or its Affiliates. 9. Support and Updates. 9.1 Licensee shall be eligible to receive support and minor updates (e.g. update 1.x, 1.y, 1.z but not 2.x, 2.y or 2.z) during the Term if any such updates are made available by Nokia, in accordance with Nokia's then current policies and procedures available at Licensee agrees by its usage of such update to be bound by such new or additional terms as may be provided with the update. Such policies and procedures may be changed from time to time. Support is only provided for the Licensed Software used in accordance with the Nokia recommended hardware reference design. 9.2 Nokia may provide Licensee with updates that are considered as important or critical by Nokia, and in such case Licensee may not continue using the previous version of the Licensed Software

5 and the use of the previous version of the Licensed Software may be prevented without installation of the update. 10. Termination This Agreement shall be effective during the Term commencing on the Effective Date and shall continue until the end of the Term unless terminated sooner in accordance with the provisions of this Agreement Nokia may terminate the Agreement immediately upon written notice by Nokia to Licensee if Licensee breaches this Agreement Either party shall have the right to terminate this Agreement immediately upon written notice in the event that the other party becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, has a receiver, administrative receiver or officer appointed over the whole or a substantial part of its assets, ceases to conduct business, or an act equivalent to any of the above occurs under the laws of the jurisdiction of the other party Upon termination of this Agreement, Licensee shall immediately stop using the Licensed Software and shall return to Nokia all copies of Licensed Software that were supplied by Nokia. All other copies of Licensed Software in Licensee s possession or control must be erased or destroyed; and such destruction shall be certified by an officer, and such certification must promptly be delivered to Nokia 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. 11. Representations, Warranty and Warranty Disclaimer Each Party represents and warrants that it has the authority to enter into this Agreement Licensee represents and warrants that Licensee is a validly organized business entity and does not take the license provided hereunder in any individual or personal capacity LICENSEE ACKNOWLEDGES THAT THE LICENSED SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER NOKIA, ITS LICENSORS OR AFFILIATES, NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, ACCURACY OF DOCUMENTATION AND SUPPORT MATERIAL, OR FITNESS FOR A PARTICULAR PURPOSE OR THAT LICENSED SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER RIGHTS. THERE IS NO WARRANTY BY NOKIA OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET LICENSEE S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE LICENSED SOFTWARE TO ACHIEVE LICENSEE S INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.

6 12. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NOKIA, ITS EMPLOYEES, LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR LICENSED SOFTWARE, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE LICENSED SOFTWARE, EVEN IF NOKIA OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES/STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, NOKIA, ITS EMPLOYEES OR LICENSORS OR AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FEES PAID BY THE LICENSEE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. NOTHING CONTAINED IN THIS AGREEMENT LIMITS NOKIA'S LIABILITY TO LICENSEE IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM NOKIA'S NEGLIGENCE. NOKIA IS ACTING ON BEHALF OF ITS EMPLOYEES AND LICENSORS OR AFFILIATES FOR THE PURPOSE OF DISCLAIMING, EXCLUDING, AND/OR RESTRICTING OBLIGATIONS, WARRANTIES, AND LIABILITY AS PROVIDED IN THIS AGREEMENT, BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSE. 13. Indemnity. Licensee agrees to defend and indemnify and hold harmless Nokia and its affiliates from and against all third party claims and all liabilities (including, but not limited to, reasonable expense of litigation and settlement of such claims), assessments, losses, costs or damages resulting from or arising out of: (i) Licensee s breach of this Agreement; (ii) Licensee s infringement or violation of any intellectual property, other rights or privacy of a third party; (iii) misuse of the Licensed Software by a third party where such misuse was made available by Licensee s actions or lack of actions; (iv) Licensee s use or misuse of the Licensed Software; and (v) the broadcast of any Content by Licensee, and the use or misuse of any Content by Licensee or any third party. 14. Export Control. Licensee acknowledges that the Licensed Software or any other item referred to in this Agreement may be subject to export control restrictions of various countries. Delivery of the Licensed Software may be subject to Nokia obtaining appropriate export licenses or other authorizations and Licensee agrees that Nokia has no control over such authorizations. Nokia shall have no liability whatsoever to Licensee if such licenses and/or authorizations are not granted. 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. Licensee agrees to fully cooperate with Nokia in any official or unofficial audit or inspection related to applicable export control regulations or import regulations and will indemnify, defend and hold Nokia and its affiliates and licensors harmless from or in connection with any breach of this Section by Licensee, Licensee s employees, consultants, agents or customers.

7 15. Confidentiality 15.1 Licensee agrees that all material and information in any form received from Nokia, including, but not limited to Licensed Software and its copies, as well as all translations of computer programs contained in the Licensed Software, Nokia's products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, or third-party confidential information, will be considered and referred to collectively as "Confidential Information". Confidential Information, however, does not include: (a) information that Nokia makes generally available to the public; (b) information that Licensee can demonstrate to have had rightfully in its possession prior to disclosure to Licensee by Nokia; (c) information that is independently developed by Licensee without the use of any Confidential Information; or (d) information that Licensee rightfully obtained from a third party who has been given the right to transfer or disclose it by Nokia. Licensee agrees to keep confidential and not to disclose, publish, or disseminate any Confidential Information to any third party. Licensee further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. Licensee agrees not to use Confidential Information otherwise for its own or any third party's benefit without the prior written approval of an authorized representative of Nokia in each instance Licensee further agrees that despite of any other confidentiality agreements it may have between Licensee and Nokia, Nokia will not be responsible for keeping confidential any information Licensee provides to Nokia through the use of the Licensed Software or any related services, including support or service related requests. Neither Nokia nor any of its employees accept or consider unsolicited ideas, including but not limited to ideas for new advertising campaigns, new promotions, new products or technologies, processes, materials, marketing plans or new product names. If, despite the request that Licensee not send us its ideas and materials, Licensee still sends them Nokia makes no assurances that Licensee s ideas and materials will be treated as confidential or proprietary The rights and obligations of this Section 15 shall remain in force for five (5) years from the date of the disclosure of Confidential Information Licensee agrees that Nokia may identify Licensee and use Licensee s logo as an OZO Live customer on any of Nokia s websites, client lists, press releases, and/or other marketing materials. 16. Audit Nokia or a certified auditor on Nokia s behalf, may, upon its reasonable request and at its expense, audit Licensee with respect to the use of the Licensed Software. Such audit may be conducted by mail, electronic means or through an in-person visit to Licensee s place of business. Any such in-person audit shall be conducted during regular business hours at Licensee s facilities and shall not unreasonably interfere with its business activities. Nokia shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that Licensee is using the Licensed Software in a way that is in material violation of the terms of the Agreement, then Licensee shall pay Nokia's reasonable costs of conducting the audit. In the case of a material violation, Licensee agrees to pay Nokia any amounts owing that are attributable to the unauthorized use. In the alternative, Nokia reserves the right, at Nokia's sole option, to terminate the licenses for the Licensed Software.

8 17. 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 Software is a "commercial item," as that term is defined in 48 C.F.R (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R (Sept. 1995). Consistent with 48 C.F.R and 48 C.F.R through (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. The 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. 18. Notices. All notices and return of the Software and Documentation should be delivered to: Nokia USA Inc. 200 S. Mathilda Avenue Sunnyvale, CA USA 19. Applicable Law and General Provisions 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 Nokia, which shall not be unreasonably withheld. Nokia shall be entitled to assign or transfer any of its rights, benefits or obligations under this Agreement on an unrestricted basis Severability If any term, covenant or condition of this Agreement or the application thereof to any Party or circumstances shall, to any extent, be held to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law Governing law and dispute resolution This Agreement is governed by the laws of the state of New York. All disputes arising from or relating to these Terms shall be settled by a single arbitrator appointed by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration procedure shall take place in New York, New York in the English language Entire Agreement This is the entire agreement and understanding between Nokia and Licensee relating to the Licensed Software, and it supersedes any prior representations, discussions, undertakings, enduser agreements, communications, or advertising relating to the Licensed Software. Neither Licensee nor Nokia shall be bound by any warranties, understandings or representations with

9 respect to the Licensed Software other than as expressly provided herein, or in a writing signed with or subsequent to the execution hereof by an authorized representative of both Nokia and Nokia to be bound thereby. Additionally, in no event shall Nokia be bound by any terms or conditions contained in Licensee s purchase order relating to the Licensed Software Force Majeure Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder other than the obligation of paying the license fees in the event and to the extent that such delay or non-performance is due to an event of Force Majeure (as defined below). If any event of Force Majeure results in a 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 any liability (except for the obligations of payment arising prior to the event of Force Majeure) towards the other party. A Force Majeure event shall mean an act of God, terrorist attack or other catastrophic event of nature that prevents either party for fulfilling its obligations under this Agreement 19.6 Headings Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof Waiver Except as specifically provided for herein, the waiver from time to time by a Party of any of their rights or their failure to exercise any remedy shall not operate or be construed as a continuing waiver of the same or of any other of such Party s rights or remedies provided in this Agreement.