As used herein, the following terms shall have the designated meanings:
1.1 "Developer Software" means the software program owned by Developer and identified in the Order.
1.2 "Integrated Software" means the combination of Developer Software and the Mobile Location Client.
1.3 "License Fee" means the fees due and payable by Developer to Skyhook as set forth in the Order.
1.4 "Licensed Technology" means Skyhook location technology and those components specifically defined in the Order.
1.5 "Location Result" means the calculated output of the Licensed Technology that identifies geographic location and related qualitative data which may include, by way of example and, without limitation, latitude, longitude, velocity, bearing, altitude, number of access points and horizontal positioning error.
1.6 "Location Server" means server software which operates on a centralized server to facilitate location determination in conjunction with the Mobile Location Client over a network and manages the use and synchronization of Reference Data with the Mobile Location Client on the device.
1.7 "Marks" means any trade name, trademark, service mark, logo, trade dress, or other name or mark that is owned or licensed by a party to this Agreement and that is protected or protectable under the laws of any jurisdiction.
1.8 "Mobile Location Client" means operating system or platform-specific client software that operates on a device to facilitate location determination leveraging IP, Wi-Fi, cellular radios and/or GPS, either autonomously or in conjunction with the Location Server, and integrates with applications and services operating on the device.
1.9 "Permitted Use" means the specific licensed use of the Licensed Technology as set forth in the Order.
1.10 "Reference Data" means Datastore of Wi-Fi/802.11 and/or cellular radio related data that is generated and developed by Skyhook and collected, modified and used by the Mobile Location Client and Location Server in the normal course of operations and which is used as the reference infrastructure for determining location.
1.11 "Skyhook Hosting Service" means operation, maintenance and management of the Location Server by Skyhook at facilities operated by or under the control of Skyhook for use by the Integrated Software
1.12 "Term" means the time period set forth in the Order.
1.13 "Skyhook Location SDK" means Skyhook's hybrid positioning system including the Mobile Location Client and the Reference Data.
2 DEVELOPER OBLIGATIONS AND RESTRICTIONS
2.1 Developer shall pay Skyhook the License Fees set forth in the Order. Unless otherwise defined in the Order, all payments are due within thirty (30) days of receipt of invoice. All payments shall be non-refundable, paid in US dollars and via wire transfer in accordance with instructions provided by Skyhook. All fees described in this Agreement are net of all sales, goods, use, property, license, value added, excise, withholding or similar taxes related to services purchased in connection herewith and any related duties, tariffs, imposts and similar charges (but not including taxes based on Skyhook's net income).
2.2 All Integrated Software which Developer or Resellers provide to end users shall be accompanied by terms and conditions no less protective than those contained in Developer's standard end- user agreement for Developer Software, or as may be mutually agreed upon by the parties in writing, the terms of which will run to the benefit of Skyhook as it applies to the Licensed Technology as an embedded third party technology.
2.3 Developer shall not, nor authorize any third party to (1) expose, copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Skyhook software or (2) expose, capture, retain, store, copy, market, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the Reference Data.
2.4 Developer may only access the data elements in the Reference Database through the Mobile Location Client and/or Location Server and may not access, read or otherwise expose the Reference Database through any other means or process. Developer agrees not to expose components of Skyhook location technology or data generated by Skyhook location technology (except Location Results) to third parties. Developer may not, directly or indirectly, and shall not authorize or enable any third parties to, use the Licensed Technology or the Integrated Software to collect, aggregate, store, etc. any data elements that could then be used to create a source of data elements that are similar to those in the Reference Database and/or that may be used to create or develop a location positioning system.
2.5 If Developer is notified of, knows of or has a reasonable belief of, a breach of the standard end-user agreement as it relates to any of Skyhook's intellectual property rights, then Developer shall take prompt, corrective action to remedy the actual or suspected breach and shall, in addition, immediately notify Skyhook of the breach and the corrective action. Developer shall assign to Skyhook at Skyhook's sole option, any rights that Developer has against its sublicensees for breach of the sublicense. Developer agrees to cooperate with Skyhook in any proceeding against any third party alleging breach of the sublicense.
2.6 Developer shall not, during the Term, (1) design, build or otherwise develop a location positioning system that is similar to the Licensed Technology or (2) integrate, license, distribute, market or otherwise use or promote with any unit of the Integrated Software a location positioning system that is substantially similar to the Licensed Technology. The foregoing notwithstanding, Developer may, if required under an operator distribution agreement, use operator-based network positioning upon prior written notification to Skyhook.
2.7 Developer shall, within forty-five (45) days of the Effective Date, issue a joint press release with Skyhook announcing the hybrid positioning capabilities of the Integrated Software and identifying Skyhook as its partner and solution provider. Such press release shall include a quote from an officer of each company and the parties shall participate in post-release interviews and follow-up with members of the media. Developer shall identify Skyhook as the provider of its Wi-Fi and related hybrid positioning capabilities in all relevant product announcements and trade events.
2.8 Developer shall make available and deliver to Skyhook development tools, resources, documentation and access to knowledgeable personnel reasonably necessary for Skyhook to ensure compatibility of the Licensed Technology with the Developer Software and to bug fix, trouble shoot, support and otherwise evaluate.
2.9 No more than one time per calendar year, Skyhook may cause an audit to be made of those books and records reasonably necessary to ascertain whether Developer is using, and has used, the Licensed Technology in accordance with this Agreement.
2.10 Developer shall not prevent, delay, modify or otherwise impair Skyhook's access, processing, and use of the Wi-Fi /802.11, cell tower, GPS and other location data relevant to the Licensed Technology that is generated or used by the Integrated Software in its normal operations.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 Developer acknowledges that in this Agreement, it is acquiring only a license to the Licensed Technology and not any title to or ownership of the Licensed Technology or any part thereof (including any of Skyhook's or its suppliers' rights to patents, copyrights, trade secrets, trademarks, or any other Skyhook rights in and to the Licensed Technology), which shall in all events remain with Skyhook and its suppliers. Developer acknowledges that Skyhook location technology is, and other Licensed Technology may be, copyrighted by Skyhook or third parties. Any copyright notice used by Skyhook shall not be deemed to imply that any part of such Skyhook location technology and/or Licensed Technology has been published or has been placed in the public domain.
3.2 Developer hereby grants to Skyhook an unrestricted, royalty-free right to use all feedback data, along with any other information provided to Skyhook by Developer relating to its use of the Licensed Technology for purposes of correcting and/or enhancing the Licensed Technology, promoting its effectiveness and developing other products and services.
3.3 Subject to the provisions herein, Skyhook hereby grants to Developer a non-exclusive, non-transferable license during the Term and thereafter to include the Skyhook Marks in Integrated Software and to use, reproduce, display, distribute and sublicense the Skyhook Marks solely in connection with Developer's and its licensees' marketing and promotion of Integrated Software.
3.4 Subject to the provisions herein, Developer hereby grants to Skyhook a non-exclusive, non-transferable, and non-sublicensable license during the Term to use, reproduce, display and distribute the Developer Marks solely to identify Skyhook as a featured partner of Developer in connection with the provision of Skyhook location technology as part of Developer's products and services.
3.5 Each party acknowledges the exclusive ownership right of the other party in such other party's Marks and agrees that all use of such other party's Marks shall inure to the benefit, and be on behalf, of such other party. Without limiting the foregoing, neither party will (i) use the other party's Marks in any manner that disparages or tarnishes any such Marks or the reputation of such other party, or that could reasonably be expected to do so; (ii) modify such other party's Marks, except as any such modification is expressly approved in writing by such other party in advance; (iii) combine the other party's Marks with any other marks or create any composite marks; (iv) register or attempt to register such other party's Marks in any jurisdiction or create, use, register or attempt to register any confusingly similar mark; or (v) challenge such other party's proprietary rights in and to such other party's Marks, or undertake any action which impairs such proprietary rights of such other party or Skyhook, or that could reasonably be expected to do so.
3.6 Each party shall have the sole right and discretion to bring proceedings alleging infringement of its Marks or unfair competition related thereto.
4 CONFIDENTIAL INFORMATION
4.1 During the term of this Agreement, the parties may disclose to one another, both orally and in writing, certain information of such party which concerns that party's business plans, customers, technology or products which is or contains confidential, proprietary or trade secret information ("Confidential Information"), including, without limitation, the Licensed Technology (Skyhook's Confidential Information), and the terms and conditions of this Agreement (both parties' Confidential Information). Each of the parties shall hold the other party's Confidential Information in strict confidence and shall not disclose the Confidential Information to any person or entity other than to the employees and contractors of such party having a need to know in order for the party to perform properly its obligations and/or exercise its rights under this Agreement and who are subject to confidentiality obligations substantially similar to those hereunder or as otherwise permitted under this Agreement. Neither party will make any other use of any nature whatsoever of the other party's Confidential Information except as expressly permitted under this Agreement. "Confidential Information" subject to this Section 7 will not include information that: (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (b) was already known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) is lawfully obtained from a third party who has the right to make such disclosure; (e) is released for publication by the disclosing party in writing. Notwithstanding the foregoing, the parties may disclose Confidential Information if required by law as part of a judicial or regulatory proceeding so long as the party that is required to so disclose takes reasonable steps available to obtain protective treatment and notifies the other party prior to disclosure in sufficient time to enable such party to seek protective treatment.
4.2 The parties acknowledge that in the event of any breach or threatened breach of this Section 4 by either party, the other party may suffer irreparable harm and may not possess an adequate remedy at law. Accordingly, each party shall have the right to seek injunctive or other equitable relief to restrain such breach or threatened breach.
5 WARRANTY DISCLAIMER
DEVELOPER ACKNOWLEGES AND AGREES THAT THE LICENSED TECHNOLOGY IS PROVIDED "AS IS" AND 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 LICENSED TECHNOLOGY. FURTHER, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SKYHOOK DOES NOT REPRESENT OR WARRANT THAT THE LICENSED TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, SECURE OR ACCURATE.
6 LIMITATION OF LIABILITY
SKYHOOK'S LIABILITY UNDER THIS AGREEMENT, WHETHER FOR CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE AMOUNT PAID TO SKYHOOK BY DEVELOPER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE WHEN SUCH LIABILTY INITIALLY AROSE. EXCEPT FOR LOSSES ARISING UNDER THE INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS.
7 TERM AND TERMINATION
7.1 The Term of this Agreement shall be as set forth in the Order.
7.2 In the event that either party (a) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of notice thereof or (b) files a voluntary petition for bankruptcy, has an involuntary petition for bankruptcy filed against it which remains undismissed for at least ninety (90) days, makes an assignment for the benefit of its creditors, or has a receiver appointed for all or a substantial portion of its property, the other party shall have the right to terminate this agreement immediately upon notice to the breaching party.
7.3 The rights and obligations of the parties under Sections 1, 2.3, 2.4, 4, 5, 6, and 8 of these Commercial Terms and Conditions shall survive any termination of this Agreement. All other rights and obligations of the parties under the Order and these Commercial Terms and Conditions shall cease upon termination.
8 MISCELLANEOUS PROVISIONS
8.1 This Agreement shall not be transferable or assignable by Developer without the prior written consent of Skyhook. A change of control of Developer shall constitute an assignment of this Agreement for which such consent is required.
8.2 This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, USA, as applied to agreements entered into and to be performed entirely within Massachusetts between Massachusetts residents. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the applicable federal and/or commonwealth courts having jurisdiction in Boston, Massachusetts.
8.3 All notices given or required hereunder shall be in writing and sent by overnight courier certified mail, return receipt requested or facsimile addressed to the parties at their addresses set forth on the signature page hereto. A party may change its notice address by notice thereof. All notices shall be deemed received three (3) days after mailing.
8.4 This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes in their entirety any prior or contemporaneous agreements and understandings in connection therewith to include the Skyhook SDK Developer Terms of Service at http://skyhookwireless.com/location-technology/devterms.php.
This Agreement may be amended, waived or revoked only by a written instrument executed by both parties.