Terms and Conditions
Effective Date: August, 2006
This Evaluation License and Development Agreement ("Agreement") is between you ("Licensee") and Skyhook Wireless, Inc. ("Skyhook"). Please read them carefully and completely as they apply to the Skyhook Wi-Fi Positioning System software and all related documentation ("Software") and location-determination data generated through use of the Software ("Data") accompanying this Agreement are subject to the terms and conditions set forth herein and all applicable laws. By using the Software and/or Data, Licensee agrees to be bound by the terms of this Agreement, and acknowledges that this Agreement represents the entire agreement between the parties.
You must enter into this Agreement by checking the box next to "Accept Terms of Use" and then clicking on the ACCEPT AND DOWNLOAD button in order to be able to install and use the Software. You hereby agree and acknowledge that this Agreement covers all your use of the Software and Data and, furthermore, by installing and (continuously) using the Software and/or Data you agree to be bound by the terms of this Agreement and any new versions hereof.
This license agreement and terms of use also apply to any Skyhook updates, upgrades, patches, bug fixes, releases or services related to this Software and/or Data unless Skyhook has otherwise notified you in writing.
This Agreement sets out the legally binding terms of your use of the Software and the Data and supersedes any and all other communications, prior, contemporaneous or subsequent, and any course of performance or course of dealing, except as modified by written agreement signed by an authorized officer of Skyhook, or by Skyhook revising this posting which may be modified by Skyhook at any time and without prior notice, such modifications to be effective upon posting by Skyhook at www.skyhookwireless.com.
BY INSTALLING THE SOFTWARE, YOU ACCEPT THESE TERMS AND AGREE TO BE BOUND BY ITS OBLIGATIONS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT INSTALL THE SOFTWARE AND/OR DELETE ALL COPIES FROM YOUR COMPUTER AND CEASE ITS USE.
1. General: The Software and Data are licensed to Licensee hereunder for use only under the terms of this Agreement, and Skyhook reserves all rights not expressly provided to Licensee. Licensee acknowledges that the Software and Data are the exclusive property of Skyhook, and all rights, titles and interest in and to the Software and Data, including any and all intellectual property rights related thereto is and shall remain the exclusive property of Skyhook. Nothing in this Agreement shall convey any intellectual property rights in and/or to the Software to Licensee.
2. License:
a. License Grant: Subject to the terms of this Agreement, Skyhook grants Licensee a limited, non-exclusive, non-assignable, non-sublicensable, non-distributable license to (i) download, install, and use the Software for the sole purpose of using the applications provided by Skyhook and in connection with Licensee's development of ancillary software applications to be used in conjunction with the Software ("Applications"), (2) generate and use the Data as input element used exclusively in the operation of the Application, (3) for personal, development, integration and/or evaluation purposes only and not for commercial use, (4) for the sole purpose stated in the 'Description of Use' field submitted by the user at registration on the skyhookwireless.com website and (5) by the individual and organization that registered to download the API on the skyhookwireless.com website.
b. Limited License to Skyhook API: Licensee shall have the right to use and/or modify the application program interface ("API") included in or linked to the Software for the sole purpose of permitting Licensee's Applications to connect with the Software, provided that: (i) no such use and/or modification shall adversely affect or impact the functionality of the Software, (ii) such use or modification shall in no way remove or disable the Software user interface, and (iii) Licensee not distribute any such Application under this Agreement.
c. Conversion to Distribution License. Should Licensee wish to distribute or make available an Application, Licensee shall contact Skyhook at www.skyhookwireless.com. Skyhook shall, in its sole discrection, approve Licensee's request based on the execution of a mutually acceptable distribution license. Licensee agrees that Skyhook shall have the right to inspect and test any such Application prior to any distribution by Licensee thereof, and any such distribution shall be subject to a separate agreement of the parties.
d. No Reverse Engineering: Licensee shall not modify, copy, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code of the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Any attempt to do so is a violation of the rights of Skyhook and may subject Licensee to prosecution and damages. Licensee shall not remove, obscure, or alter Skyhook's copyright notices, trademark notices, or other proprietary rights notices affixed to or contained within the Software.
e. No Compilation of Data; Limited use of Data: The Data shall be used for the sole-purpose of generating real-time location coordinates only and for no other purposes. Licensee shall not compile, aggregate, store, retain, collect or amass the Data. Licensee accepts and recognizes that the Data may only be used in conjuction with the Software for the sole purpose of identifying location as set forth in this Agreement. Licensee recognizes that the Data represents the intellectual property of Skyhook and is subject to civil and criminal protections, including those under US and international copyright laws, a violation of which may subject Licensee to prosecution and damages.
f. No Load, Performance, Scalability or Concurrent Usage Testing: Licensee shall not use the Application and/or Data to conduct load, performance, scalablity, concurrent usage and/or any other testing of the Skyhook system.
3. Transfer: Licensee shall not sell, assign, rent, distribute, export, import or otherwise grant rights to third parties with regard to the Software and/or Data.
4. Reservation of Rights: Nothing in this Agreement shall convey any intellectual property rights in and/or to the Software and/or Data to Licensee. All other rights with respect to the Software and/or Data whether now existing or which may hereafter come into existence, which are not expressly granted herein, are reserved for Skyhook. Licensee shall retain the intellectual property rights in and to any Application it creates under the limited license granted in this Agreement.
5. Termination: This Agreement is effective until terminated. Either party may terminate this Agreement at any time upon written notice to the other. Licensee's rights under this Agreement shall terminate automatically without notice from Skyhook should Licensee fail to comply with any term(s) of this Agreement. Upon the termination of the Agreement, Licensee shall cease all use of the Software and Data and destroy all copies thereof. Upon termination of this Agreement, Licensee (a) acknowledges and agrees that all licenses and rights to use the Software and Data shall terminate, and (b) will cease any and all use of the Software and Data, and (c) will remove the Software and Data from all hard drives, networks and other storage media and destroy all copies of the Software and Data in its possession or under its control.
6. WARRANTY DISCLAIMER. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND DATA IS AT LICENSEE??™S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. THE SOFTWARE AND DATA ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SKYHOOK HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE AND/OR DATA. FURTHER, SKYHOOK DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR DATA WILL ALWAYS BE AVAILABLE, ACCESSIBLE, SECURE OR ACCURATE.
7. LIABILITY LIMITATION. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SKYHOOK BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE AND/OR DATA, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILTY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF SKYHOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Privacy Policy. You agree that you will implement and maintain a Privacy Policy similar to the Skyhook Privacy Policy that is posted on www.skyhookwireless.com.
9. Indemnification.
a. By Licensee. Licensee agrees to indemnify, defend, and hold harmless Skyhook (including Skyhook's affiliates, successors, officers, directors, employees and representatives) against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys' fees and court costs) and damages arising out of or in connection with any and all third party claims relating to Licensee's activities pursuant to this Agreement.
b. By Skyhook. Skyhook agrees to indemnify, defend, and hold harmless Licensee (including Licensee's affiliates, successors, officers, directors, employees and representatives) against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys' fees and court costs) and damages arising out of or in connection with any claim that the Licensee's access to or use of the Software and/or Data in the manner permitted hereunder infringes a third party's intellectual property rights.
c. Cooperation. In connection with any claim or action described in this Section, the party seeking indemnification (i) will give the indemnifying party prompt written notice of the claim, (ii) will cooperate with the indemnifying party (at the indemnifying party??™s expense) in connection with the defense and settlement of the claim, and (iii) will permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party??™s prior written consent (which will not be unreasonably withheld). Further, the indemnified party (at its cost) may participate in the defense and settlement of the claim.
10. Confidentiality. In connection with the parties performing pursuant to this Agreement, Licensee acknowledges that the Software and Data are and contain information proprietary to Skyhook ("Confidential Information"). Licensee agrees not to disclose any such Confidential Information except to Licensee's employees, consultants and advisor's who are legally bound to maintain the confidentiality of the Software and Data and such related information. These restrictions will not apply to any information that (a) is publicly known at the time of its disclosure; (b) is lawfully received from a third party not obligated to maintain it in confidence; (c) is published or otherwise made known to the public by Skyhook; (d) Licensee generated independently before receiving it, as evidenced by Licensee's records; or (e) is required to be disclosed under any law, governmental rule or regulation or a valid court order. Licensee acknowledges that any breach or violation of this Section will cause irreparable harm to Skyhook and that damages are not an adequate remedy. Licensee therefore agrees that Skyhook shall be entitled to seek and obtain a court order enjoining, prohibiting and restraining Licensee from the continuance of any such violation, in addition to any monetary damages which might occur by reason of a violation of this Section or any other remedies at law or in equity, including without limitation specific performance, and that in any such action, Licensee will not raise as a defense the argument that an adequate remedy for such breach exists at law. The posting of a bond shall not be required for any injunction to be issued in accord with this Section.
11. Waiver Of Jury Trial. The parties hereby agree to waive their respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement. The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. The parties each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings. Each party further warrants and represents that each has had the opportunity to have legal counsel review the waiver. The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.
12. Prevailing Party. If any legal action or other proceeding is brought for a breach of this Agreement or any of the warranties herein, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such party may be entitled.
13. Waiver Of Breach. A breach of any provision of this Agreement may only be waived in writing and the waiver of such breach shall not operate or be construed as a waiver of any subsequent breach.
14. Severability. If any provision of this Agreement should, for any reason, be held invalid or unenforceable in any respect, the remainder of this Agreement shall be enforced to the full extent permitted by law. A court of competent jurisdiction is hereby empowered to modify the invalid or unenforceable provision to make it valid and enforceable.
15. Assignment & Transfer. Skyhook may freely assign and/or transfer this Agreement in connection with a sale of its business as a whole or substantially all of the assets of its business. Licensee shall not otherwise assign or transfer this Agreement without the express prior written consent of Skyhook, such consent not to be unreasonably withheld.
16. Bind & Benefit. This Agreement shall bind and benefit the successors and permitted assigns of the parties.
17. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, United States of America without regard to principles of conflict of laws. The parties consent to the federal and state courts of the Commonwealth of Massachusetts having jurisdiction over them.