RHODES FRAMEWORK COMMERCIAL LICENSE AGREEMENT
This Rhodes Framework Commercial License Agreement (”Agreement”) is a legal agreement between Rhomobile Inc. (”Rhomobile“), 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.
“Application” shall mean Licensee’s software product created using the Licensed Software which may include portions of the Licensed Software.
“Designated User(s)” shall mean the employee(s) of Licensee acting within the scope of their employment or Licensee’s consultant(s) or contractor(s) acting within the scope of their services for Licensee and on behalf of Licensee.
“Initial Term” shall mean the period of time one (1) year from the Effective Date.
“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 Rhomobile to Licensee in conjunction with this Agreement.
“Party or Parties” shall mean Licensee and/or Rhomobile.
“Redistributables” shall mean the portions of the Licensed Software that may be distributed with or as part of Applications in object code form.
“Support” shall mean standard developer support that is provided by Rhomobile to assist eligible Designated Users in using the Licensed Software in accordance with its established standard support procedures.
“Updates” shall mean a release or version of the Licensed Software containing enhancement, new features, bug fixes, error corrections and other changes that are generally made available to users of the Licensed Software that have contracted for maintenance and support.
2. OWNERSHIP
The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
Rhomobile shall own all right, title and interest including the intellectual property rights in and to the information on bug fixes or error corrections relating to the Licensed Software that are submitted by Licensee to Rhomobile as well as any intellectual property rights to the correction of any errors, if any. To the extent any rights do not automatically vest in Rhomobile, Licensee assigns, and shall ensure that all of its Affiliates, agents, subcontractors and employees assign, all such rights to Rhomobile. All Rhomobile’s and/or its licensors’ trademarks, service marks, trade names, logos or other words or symbols are and shall remain the exclusive property of Rhomobile or its licensors respectively.
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. In addition, by installing, copying, or otherwise using any Updates or other components of the Licensed Software that Licensee receives separately as part of the Licensed Software, Licensee agrees to be bound by any additional license terms that accompany such Updates, if any. If Licensee does not agree to the additional license terms that accompany such Updates, Licensee may not install, copy, or otherwise use such Updates. Upon Licensee’s acceptance of the terms and conditions of this Agreement, Rhomobile grants Licensee the right to use the Licensed Software in the manner provided below.
4. LICENSES
4.1 Using Rhodes to create applications
Rhomobile grants to Licensee a non-exclusive, non-transferable, perpetual license to use the framework for the sole purposes of designing, developing, and testing a single application. There is no limit on the number of developers that may participate in developing that single application. These users may be on as many mobile device operating systems as the licensee chooses. Development of additional applications requires that additional Rhodes licenses be purchased.
4.2 Redistribution
a) Rhomobile grants Licensee a non-exclusive, royalty-free right to reproduce and distribute the object code form of Redistributables for execution on the specified Platforms. Copies of Redistributables may only be distributed with and for the sole purpose of executing Applications permitted under this Agreement that Licensee has created using the Licensed Software. Under no circumstances may any copies of Redistributables be distributed separately. b) Licensee may not distribute, transfer, assign or otherwise dispose of Applications and/or Redistributables, in binary/compiled form, or in any other form, if such action is part of a joint software and hardware distribution, except as provided by a separate runtime distribution license with Rhomobile or one of its authorized distributors.c) This agreement permits the distribution of Redistributables from a single Application d) Licensee agrees to execute additional Rhodes commercial licenses if it should wish to distribute additional applications.
4.3 Further Requirements
The licenses granted in this Section 4 by Rhomobile to Licensee are subject to Licensee’s compliance with Section 7 of this Agreement.
5. VERIFICATION
Rhomobile or a certified auditor on Rhomobile’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 Licensee’s business activities. Rhomobile 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 Rhomobile’s reasonable costs of conducting the audit.
In the case of a material violation, Licensee agrees to pay any amounts owing that are attributable to the unauthorized use. In the alternative, Rhomobile reserves the right, at Rhomobile’s sole option, to terminate the licenses for the Licensed Software.
6. CONDITIONS FOR CREATING APPLICATIONS AND DISTRIBUTING REDISTRIBUTABLES
The licenses granted in this Agreement for Licensee to create Applications and distribute them and the Redistributables (if any) to Licensee’s customers is subject to all of the following conditions: (i) all copies of the Applications which Licensee creates must bear a valid copyright notice, either Licensee’s own or the copyright notice that appears on the Licensed Software; (ii) Licensee may not remove or alter any copyright, trademark or other proprietary rights notice contained in any portion of the Licensed Software; (iii) Redistributables, if any, shall be licensed to Licensee’s customer “as is”; (iv) Licensee shall indemnify and hold Rhomobile, its Affiliates, contractors, and its suppliers, harmless from and against any claims or liabilities arising out of the use, reproduction or distribution of Applications; (v) Applications must be developed using a licensed, registered copy of the Licensed Software; (vi) Applications must add primary and substantial functionality to the Licensed Software; (vii) Applications may not pass on functionality which in any way makes it possible for others to create software with the Licensed Software, however Licensee may use the Licensed Software’s scripting functionality, if included with Licensed Software, solely in order to enable scripting that augments the functionality of the Application(s) without adding primary and substantial functionality to the Application(s); (viii) Applications may not compete with the Licensed Software; (ix) Licensee may not use Rhomobile’s or any of its suppliers’ names, logos, or trademarks to market Application(s), except to state that Application was developed using the Licensed Software.
NOTE: The Open Source Editions of s Rhodes are licensed under the terms of the GNU General Public License versions 3.0 (GPL) (as applicable) and not under this Agreement. If Licensee has, at any time, developed all (or any portions of) the Application(s) using a version of one of these Products licensed under the the GPL, Licensee may not combine such development work with the Licensed Software and must license such Application(s) (or any portions derived there from) under the terms of the GNU Lesser General Public License version 3 (Rhomobile only) copies of which are located at http://www.gnu.org/copyleft/gpl.html.
7. LIMITED WARRANTY AND WARRANTY DISCLAIMER
Rhomobile hereby represents and warrants with respect to the Licensed Software that it has the power and authority to grant the rights and licenses granted to Licensee under this Agreement. Except as set forth above, the Licensed Software is licensed to Licensee “as is”. To the maximum extent permitted by applicable law, Rhomobile 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.
8. LIMITATION OF LIABILITY
If, Rhomobile’s warranty disclaimer notwithstanding, Rhomobile is held liable to Licensee, whether in contract, tort or any other legal theory, based on the Licensed Software, Rhomobile’s entire liability to Licensee and Licensee’s exclusive remedy shall be, at Rhomobile’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 Rhomobile all copies of the Licensed Software as originally delivered to Licensee. Rhomobile 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 Rhomobile 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 Rhomobile to Licensee shall not exceed the total amount Licensee has paid to Rhomobile in connection with this Agreement.
9. SUPPORT AND UPDATES
Licensee shall be eligible to receive Support and Updates during the Initial Term, in accordance with Rhomobile’s then current policies and procedures, if any. Such policies and procedures may be changed from time to time. Following the Initial Term, Rhomobile shall no longer make the Licensed Software available to Licensee unless Licensee purchases additional Support and Updates according to this Section 10 below.
Licensee may purchase additional Support and Updates following the Initial Term at Rhomobile’s terms and conditions applicable at the time of renewal.
10. CONFIDENTIALITY
Each party acknowledges that during the Initial 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 Rhomobile and Licensee conflict with the terms of this Section 10, this Section 10 shall be controlling over the terms of the Non-Disclosure Agreement.
11. GENERAL PROVISIONS
11.1 Marketing
Rhomobile may include Licensee’s company name and logo in a publicly available list of Rhomobile customers and in its public communications.
11.2 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 Rhomobile, which shall not be unreasonably withheld.
11.3 Termination
Rhomobile may terminate the Agreement at any time immediately upon written notice by Rhomobile 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 return to Rhomobile all copies of Licensed Software that were supplied by Rhomobile. 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 Rhomobile a written confirmation that this has occurred.
11.4 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. Notwithstanding the foregoing, Section 4.1 shall not survive if the Agreement is terminated for material breach.
11.5 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.
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 Rhomobile 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.
11.6 Payment and Taxes
All payments under this Agreement are due within thirty (30) days of the date Rhomobile mails its invoice to Licensee. All amounts payable are gross amounts but exclusive of any value added tax, use tax, sales tax or similar tax. Licensee shall be entitled to withhold from payments any applicable withholding taxes and comply with all applicable tax and employment legislation. Each party shall pay all taxes (including, but not limited to, taxes based upon its income) or levies imposed on it under applicable laws, regulations and tax treaties as a result of this Agreement and any payments made hereunder (including those required to be withheld or deducted from payments). Each party shall furnish evidence of such paid taxes as is sufficient to enable the other party to obtain any credits available to it, including original withholding tax certificates.
11.7 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 part 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.
11.8 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 Rhomobile shall be given to:
Rhomobile, Inc.
10950 North Blaney Avenue
Cupertino, CA 95014 U.S.A.
11.9 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/or Modified Software and/or Applications 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, Modified Software or Applications.
11.10 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 California 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 Northern District of California (or if such court lacks jurisdiction, the state courts of the State of California) 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 defense 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 13.10 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.
11.11 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 Rhomobile and its licensors. In addition, no licenses or immunities are granted to the combination of the Licensed Software and/ Modified Software, as applicable, with any other software or hardware not delivered by Rhomobile under this Agreement.
11.12 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. 11.212 (Sept. 1995). Consistent with 48 C.F.R. 11.212 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.