Evaluation License Agreement
This Evaluation License Agreement (this “Agreement”) is between you (both the individual downloading or installing the Software (defined below) and any single legal entity on behalf of which such individual is acting) (collectively, “You” or “Your”) and Navmii Holdings Ltd and all it subsidiaries, “Navmii”) and shall be deemed fully executed and effective as of the date that you accept these terms by signing up to Namvii and downloading the software (“Effective Date”).
IT IS IMPORTANT THAT YOU READ THIS AGREEMENT CAREFULLY. BY CLICKING TO ACCEPT OR AGREE TO THIS AGREEMENT (WHERE THIS OPTION IS MADE AVAILABLE TO YOU) OR BY MAKING ANY USE OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT OR DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT CLICK TO ACCEPT OR AGREE TO THIS AGREEMENT AND DO NOT MAKE ANY USE OF THE SOFTWARE. IF YOU DO NOT AGREE TO ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SOFTWARE. NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT IS NOT EFFECTIVE UNLESS AND UNTIL NAVMII DELIVERS SOFTWARE TO YOU. IN THE EVENT NAVMII, IN ITS SOLE DISCRETION, ELECTS NOT TO DELIVER SOFTWARE TO YOU, THIS AGREEMENT SHALL HAVE NO FORCE AND EFFECT, REGARDLESS OF WHETHER YOU CLICKED TO ACCEPT OR AGREE TO THIS AGREEMENT.
1.1 “Software” shall mean Navmii’s SDK for Mobile Apps, software and sample applications, files, plug ins, tools, other SDKs, application programming interfaces, and/or hardware materials provided by Navmii to You hereunder; any related materials and documentation therefore; and any modifications, error corrections, bug fixes, new releases or other updates to any of the foregoing that may be provided hereunder by Navmii to You during the Term of this Agreement.
2.1 Limited Evaluation License. Subject to Your compliance with the terms and conditions of this Agreement, Navmii hereby grants to You a restricted, non-exclusive, personal, nontransferable, nonsublicensable, royalty-free, revocable (at-will) right to use and copy, during the Term of this Agreement and in accordance with the documentation provided by Navmii, the Software, solely in a non-production capacity and solely for Your own internal testing and evaluation of the Software, and for no other business purpose. Except as set forth in this Section 2.1, no other right or license of any kind is granted by Navmii to You hereunder with respect to the Software.
2.2 Exclusions. Notwithstanding Section 2.1, You shall not (and shall not allow any third party to), without the prior written consent of Navmii: (a) decompile, disassemble or otherwise reverse engineer the Software, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Software or any portion thereof (unless Software is delivered to You in source code form by Navmii); (b) distribute, disclose, market, rent, lease, assign, sublicense, pledge, encumber or otherwise transfer the Software, in whole or in part, to any third party; or (c) use the Software for production purposes or any other business purpose (other than the internal testing and evaluation authorized under Section 2.1). You must not remove, alter, or obscure in any way all proprietary notices of Navmii or its suppliers on or within the Software provided by Navmii to You. You will be responsible for compliance with all laws, including without limitation export control, import and custom requirements regarding receipt of and use of the Software.
2.3 Restrictions. Except for hardware and documentation provided by Navmii, You shall store the Software (and all copies thereof) on no more than two (2) secure servers owned and controlled by You. You shall securely maintain hardware and documentation provided by Navmii. You acknowledge that the Software constitutes the trade secrets of Navmii. Further, You agree to control and safeguard all Software using security measures and safeguards at least as stringent as You use for Your own most sensitive software and/or confidential information but in any event shall observe procedures and controls including at a minimum the following:
(a) The Software shall be accessible only by You or Your employees with a manifest “need to know” directly related to the purpose of this Agreement.
(b) You agree to record in a database or source code control system the user name, date and portion of the Software accessed, each time an employee accesses the Software. You shall keep such records for at least two (2) years after each access. You agree to make such records available for inspection by Navmii upon request.
(c) Any of Your employees who have access to Software and who terminate their association with You or who are assigned to a different project shall be immediately removed from access to the Software, and You shall take all reasonable actions to ensure that such employees have neither made nor kept copies of the same, whether in electronic or paper form.
(d) You agree to notify Navmii promptly if a breach of security occurs that compromises the confidentiality of the Software and to take actions appropriate in the circumstances or otherwise requested by Navmii to rectify such breach.
For the avoidance of doubt, the foregoing obligations, and all other of Your obligations relating to the Software, shall apply with respect to all enhancements, adaptations, improvements, derivative works and other modifications made to any Software.
2.4 Audit Rights. At Navmii’s written request, from time to time, (a) You will verify in writing Your compliance with this Agreement, and (b) Navmii may have an independent auditor review Your books, records, systems, and facilities to audit Your compliance with this Agreement. Any such audit shall be at Navmii’s expense; provided that if such audit reveals any material breach of this Agreement, You shall promptly pay to Navmii all costs and expenses of such audit. You shall correct any noncompliance.
2.5 No Support. Navmii has no obligation to provide support, maintenance, upgrades, modifications or new releases under this Agreement.
Navmii retains and shall own all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights (collectively, the “Intellectual Property Rights”) in and to the Software, as well as any changes, improvements, and modifications to, and adaptations and derivative works of, the foregoing produced by or on behalf of Navmii (collectively the “Solution”). No implied rights or licenses are granted pursuant to this Agreement. Except for the rights expressly provided herein, You shall not acquire any right to distribute or otherwise use any of the Solution (or practice any rights under Navmii’s patents) and the provision of, and license to, the Software hereunder is expressly conditioned on Your acknowledgement that such use may constitute infringement of Navmii’s Intellectual Property Rights (which is expressly prohibited) and that You must separately obtain a license with respect to any such use. In the event that any invention, work of authorship, creation, trade secret, change, improvement, modification, adaptation, or derivative work is developed by You using the Solution (an “Improvement”), unless prohibited by law all Intellectual Property Rights arising in respect of such Improvement shall initially vest in Navmii upon creation. Regardless of whether as a matter of law any Intellectual Property Rights arising in respect of such Improvement initially vest in You upon creation, in consideration of Navmii granting You the favourable license terms set forth in this Agreement (which You acknowledge and agree comprise a fair and reasonable consideration), You hereby irrevocably assign and agree to assign all rights, title, and interest in and to the Intellectual Property Rights in the Improvement to Navmii. You further agree to assist Navmii in any reasonable manner to obtain and enforce the Intellectual Property Rights in the Improvement (including to execute, when requested, applications and registrations therefor and assignments to Navmii). Navmii hereby grants to You a non-exclusive right to use the Intellectual Property Rights in the Improvement during the Term for Your internal use only in accordance with the stipulations and restrictions set forth in this Agreement. You hereby covenant that You will not assert against Navmii any claim that the Software infringes any Intellectual Property Rights owned or controlled by You.
No Warranties; Remedies
4.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, (A) NAVMII MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SOFTWARE OR THE DOCUMENTATION, (B) THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITH NO WARRANTY, (C) YOU AGREE THAT YOUR USE OF THE SOFTWARE AND THE DOCUMENTATION IS AT YOUR SOLE RISK, AND (D) NAVMII EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Navmii does not warrant that the SOFTWARE or any application incorporating the SOFTWARE will operate in combination with hardware, software, systems or data not provided by Navmii, except as expressly specified in the Documentation, or that the operation of the SOFTWARE or any application incorporating the SOFTWARE will be uninterrupted or error-free.
4.2 Limitation of Liability. In no event will Navmii be liable for any indirect, incidental, special, consequential or punitive damages, or damages for loss of profits, revenue, business, savings, data, use or cost of substitute procurement, incurred by either party or any third party, whether in an action in contract or tort, even if Navmii has been advised of the possibility of such damages or if such damages are foreseeable. To the maximum extent permitted by applicable law, in no event will Navmii’s liability for damages hereunder, regardless of the theory of liability (contract, tort or otherwise), exceed TWO HUNDRED AND FIFTY POUNDS (£250). The parties acknowledge that the limitations of liability in this Section 4.2 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Navmii would not have entered into this Agreement.
Term and Termination
This Agreement is effective for the period from the Effective Date until the expiration date set forth on the Navmii website where such Software is made available for download or accompanying delivery of the Software to You, unless earlier terminated (the “Term”). Either party may terminate this Agreement for any or no reason upon five (5) days’ prior notice to the other party (which, in the case of notice delivered to You, may be delivered via the email address or physical address provided by You when requesting or downloading the Software). In addition, Navmii may terminate this Agreement immediately in the event that You breach any of the provisions of this Agreement or take any action in derogation of Navmii’s rights in and to the Software. Upon termination or expiration of this Agreement, You will cease all use of the Software, return to Navmii or destroy the Software and related materials in Your possession, and so certify to Navmii. Navmii reserves the right to terminate the functionality of the Software at any time. Except for the licenses granted to You herein and as otherwise expressly provided herein, the terms of this Agreement will survive expiration or termination.
- General Terms
6.1 Changes to this Agreement. Navmii may make changes to or otherwise amend this Agreement:
(a) as it distributes new versions of the Software; or
(b) with respect to any previously released version of the Software, via at least thirty (30) days’ prior written notice to You (which may be delivered via the email address or physical address provided by You when requesting or downloading the Software).
You agree that, if You do not agree with any change made by Navmii pursuant to Section 6.1(b) above, this Agreement (without such change) shall automatically terminate as of the date in which such change would become effective and, accordingly, Your right to use the previously released version of the Software shall terminate.
6.2 Confidentiality. You agree not to disclose to any third party (a) the contents of any documentation provided to You pursuant to this Agreement, and (b) any other Confidential Information of Navmii (including the contents of any Software or components thereof). For purposes of this Agreement, “Confidential Information” shall mean, with respect to Navmii, any non-public information (including business and/or technical information) of Navmii whether disclosed in writing, orally or visually, that is designated “confidential,” “proprietary,” or which, under all of the circumstances, should reasonably be treated as confidential. Confidential Information shall include, without limitation, business information, pricing and terms, related product documentation, technical data, algorithms, software (whether in object or source code), performance statistics, future plans, product road maps, customer and employee information, know-how (including reference designs), trade secrets, and other information of a non-public nature that is known or used by Navmii.
6.3 Indemnification. You will indemnify, defend, and hold harmless Navmii and its affiliates, and their successors, assigns, officers, directors, employees, and agents, from any claim, liability, loss, damage, lien, judgment, and cost, including reasonable attorneys’ fees and litigation expenses, with respect to Your use or misuse of the Software and any component thereof.
6.4 Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by United Kingdom law without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
6.5 Dispute Resolution (Hague Convention Resident). If You (or the entity that You represent) reside in, are incorporated within, or are otherwise located in a country that is a signatory to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”), then in the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in the United Kingdom, and the parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
6.7 Notices. All notices sent to Navmii under this Agreement shall be deemed effective when received and made in writing by either: (a) registered mail; (b) certified mail, return receipt requested; or (c) other reliable overnight courier service, and, except as otherwise revised by written notice provided in conformance with this Section 6.7, shall be sent to the address and attention set forth below. All notices sent to You under this Agreement shall be deemed effective when received and made in writing by either: (i) electronic mail; (ii) registered mail; (iii) certified mail, return receipt requested; or (iv) other reliable overnight courier service, and, except as otherwise revised by written notice provided in conformance with this Section 6.7, shall be sent to the email address or physical address provided by You when requesting or downloading the Software.
For Navmii Holding Ltd:
Navmii Holdings Ltd
G01 Power Road Studios
114 Power Road
6.8 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
6.9 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Navmii. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
6.11 U.S. Government End Users. The Software is “commercial computer software,” as that term is defined in the U.S. Federal Acquisition Regulations. The Software is being licensed to U.S. Government end users (a) only as commercial computer software and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
6.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties and, other than any Navmii license agreement manually signed by the parties, supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. In the event of a conflict between the terms of this Agreement and a manually-signed Navmii license agreement, the terms of such manually-signed license agreement will control. Except as provided under Section 6.1 above, this Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any of Your purchase orders or other ordering documents.
BY CLICKING REGISTER YOU ACCEPT OR AGREE TO THIS AGREEMENT OR BY MAKING ANY USE OF THE SOFTWARE, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT, AND (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU.