The Developer License Agreement (Agreement) is between Aceeca LLC, a Delaware corporation located at 8900 West Tower Avenue, Milwaukee, Wisconsin 53224, USA (Aceeca) and you (Developer)
BY USING THE MATERIALS COVERED BY THIS AGREEMENT (THE "MEAZURA DEVELOPMENT KIT"). YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE THE MEAZURA DEVELOPMENT KIT. INSTEAD, PLEASE DESTROY ALL COPIES OF THE SOFTWARE WHICH YOU MAY HAVE.
1. LICENSE. Subject to Developer's compliance with the terms and conditions of this Agreement, Aceeca hereby grants to Developer a nonexclusive, personal, limited, nontransferable right and license to use the accompanying Aceeca software and documentation (collectively the “Software”) but only for the limited purposes set forth in this Section 1. Developer agrees not to use the Software for any purpose other than:
(i) the testing of the Software, and (if applicable),
(ii) the development by Developer of a product, which is designed to operate on the Aceeca products, which include the Meazura handheld, desk top and fixed mount computers (Meazura Products) that contain an external facility (Meazura Module) into which compatible third party hardware and software products can be inserted and are to be compatible with the Palm OS® platform (“Developer Product”), without violating Aceeca’s or its suppliers’ intellectual property rights, including, but not limited to, trade secrets, patents, copyrights, trade marks and industrial design. The Software, Meazura Products and Meazura Module are collectively referred to in the Agreement as the Meazura Development Kit. The Developer may (a) use, reproduce and create derivative works of the materials provided by Aceeca under this Agreement, solely internally in connection with Developer’s development and manufacture of products suitable for the Meazura Module that meet Aceeca’s module compatibility requirements (Developer Products); and (b) to make, have made , use, distribute and sell Developer Products directly or indirectly to End Users for use with Meazura Products. or
(iii) to the extent the Software is not Confidential Information, the demonstration of the Developer Product.
LICENSE RESTRICTIONS. Developer is not permitted to lease or rent (except under separate mutually agreeable terms set forth in writing and signed by both parties), distribute or sublicense the Software or to use the Software in a time-sharing arrangement or in any other unauthorized manner. No license is granted to Developer in the human readable code of the Software (source code). Developer acknowledges that Aceeca or its suppliers own all right, title and interest, including all intellectual property rights, in and to the Software (including any modifications thereto made by Developer).
Except as otherwise expressly provided under this Agreement, Aceeca grants and Developer obtains no rights, express, implied, or by estoppel, in any Aceeca intellectual property, and Developer shall have no right, and specifically agrees not to (a) transfer or sublicense its license rights to any other person; (b) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the software contained in the Development Kit to human-readable form to gain access to trade secrets or confidential information in such software, except and only to the extent such activity is expressly permitted by applicable law notwithstanding such limitation; (c) use or allow others to use the Development Kit, in whole or part, to develop, manufacture or distribute any products other than Developer Products; (d) use or allow others to use the Development Kit, in whole or part, to develop, manufacture or distribute products (including Developer Products) for use as a plug-in or accessory to any product other than MEAZURA(TM) Products; (e) use or allow others to use the Development Kit, in whole or part, to develop, manufacture or distribute any products incorporating an external or internal module design or which in any way are competitive with the MEAZURA™ Products ; or (f) modify or create derivative works of any portion of the Development Kit.
2. NO ENDORSEMENT. Developer agrees that unless Developer Products qualify for the Aceeca Meazura module compatibility trademark (the “Mark”), the Developer will not market Developer Products developed using the Meazura Development Kit in any manner which implies that Aceeca or its suppliers endorse such products.
Prior to Developer’s use of the Mark in connection with a Developer Product, Developer must submit Developer Product to an approved testing laboratory ( for a list of approved laboratories go to www.aceeca.com) who shall conduct reasonable testing in accordance with Aceeca’s compatibility testing guidelines to ensure that the Developer Product conforms in all respects to Aceeca’s MEAZURA(TM) module compatibility requirements (the "Compatibility Criteria"). Developer agrees that it will not use the Mark or make any statements claiming or implying compatibility with the MEAZURA(TM) module in connection with any Developer Products which have not passed such compatibility testing and that, if Aceeca determines that any Developer Product is not compliant with the Compatibility Criteria, Developer shall immediately cease use of the Mark in connection with that Developer Product. All goodwill generated by Developer’s use of the Mark shall inure to Aceeca’s benefit.
Subject to the terms and conditions of this Agreement, Aceeca hereby grants to Developer a non-exclusive, non-transferable license to use, subject to the guidelines set forth in Aceeca’s trademark policy and other applicable guidelines, (i) Aceeca’s MEAZURA(TM) module compatibility trademark solely in connection with the marketing and sale of Developer Products which comply with the Compatibility Criteria; and (ii) artwork, icons, logos, color schemes, and other industrial designs and designations of source provided by Aceeca to Developer hereunder solely in connection with the marketing and sale of Developer Products
Developer will defend at its expense any action brought against Aceeca to the extent that it arises from or relates to Developer’s development, manufacturing, marketing or distribution of Developer Products, and Developer will pay any settlements and any costs, damages and attorneys' fees finally awarded against Aceeca in such action which are attributable to such claim; provided, the foregoing obligation shall be subject to notifying Developer promptly in writing of the claim, giving it the exclusive control of the defense and settlement thereof, and providing all reasonable assistance in connection therewith. Notwithstanding the foregoing, Developer shall have no liability for any claim of infringement to the extent required by compliance with the Compatibility Criteria.
3. STORAGE OF SOFTWARE. Developer agrees to restrict access to the Software so that only those employees and contractors entitled to view such Software under the terms of Section 5 below may see or use the Software. Developer agrees to maintain an accurate log of all those given access to the Software by the Developer. Developer may make only as many copies of Software and documentation as are reasonably necessary to effectuate the permitted uses of the Software listed in Section 1 above. Developer must preserve any proprietary rights notices on or in the Software and must place all such notices on and in any copies made.
4. DEFINITION OF CONFIDENTIAL INFORMATION. Developer agrees that the Software and any other information disclosed by Aceeca to Developer, including but not limited to information learned by Developer from Aceeca employees, agents, or through inspection of Aceeca’s property, that relates to Aceeca's products, designs, opportunities, finances, research, development, know-how, personnel, or third-party confidential information disclosed to Developer by Aceeca, will be considered and referred to collectively in this Agreement as "Confidential Information." Confidential Information, however, does not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach on the part of Developer; (2) Developer can demonstrate to have had rightfully in its possession prior to disclosure to Developer by Aceeca with written records; (3) is independently developed by Developer without the use of any Confidential Information; or (4) Developer rightfully obtains from a third party who has the right to transfer or disclose it without breach or violation of any obligation of confidentiality. All Confidential Information remains the sole property of Aceeca or its suppliers. Developer has no implied licenses or other rights in the Confidential Information not specifically granted in Section 1.
5. NONDISCLOSURE AND NON USE OF CONFIDENTIAL INFORMATION. Developer will not disclose, publish, or disseminate Confidential Information (as defined in Section 4 above) to anyone other than those of its employees and contractors with a demonstrable need to know who have binding, written, confidentiality obligations to Developer that protect such Confidential Information against unauthorized disclosure. Developer agrees not to decompile, reverse engineer, disassemble or otherwise reduce the Software to a human perceivable form, and Developer will not modify (except for header files provided that Developer does not distribute such modifications) network, rent, lease, or loan the Software in whole or in part. Developer further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. Developer agrees to accept Confidential Information for the sole purpose of effecting the permitted uses of the Software as set forth in Section 1 above. Developer 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 Aceeca in each instance.
6. VERIFICATION OF COMPLIANCE. Developer agrees that authorized Aceeca representatives with reasonable advance notice at reasonable times may inspect the site where the Software is located, copies of other Confidential Information and Developer's Software access log in order to verify that Developer is complying with its obligations under this Agreement.
7. WARRANTY DISCLAIMER. The Software may be designated as alpha, beta, development, prerelease, untested, or not fully tested versions of the Software. The Software may contain errors that could cause failures or loss of data, and may be incomplete or contain inaccuracies. DEVELOPER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION IS AT DEVELOPER’S SOLE RISK. THE SOFTWARE AND OTHER CONFIDENTIAL INFORMATION ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND AND ACEECA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND SATISFACTORY QUALITY. NEITHER ACEECA NOR ITS SUPPLIERS WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION ARE SUITABLE FOR DEVELOPER’S USE OR THAT THE OPERATION OF THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION WILL BE CORRECTED. FURTHERMORE, NEITHER ACEECA NOR ITS SUPPLIERS WARRANTS OR MAKES ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION OR IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACEECA SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF ANY PORTION OF THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
Developer acknowledges that Aceeca or its suppliers may not have publicly announced the availability of the Software, that Aceeca has not promised or guaranteed to Developer that such Software will be announced or made available to anyone in the future, and that Aceeca has no express or implied obligation to Developer to announce or introduce the Software or any similar or compatible product, or to continue to offer or support the Software in the future.
8. TERM AND TERMINATION. This Agreement will continue in effect until terminated in accordance with this Section. Developer may terminate this Agreement at any time, for any reason, but only by returning to Aceeca: (1) the Software and all existent copies of other Confidential Information on any tangible medium, and (2) a written certification by an authorized representative of Developer that all tangible copies of the Software and any other Confidential Information have been returned to Aceeca or completely destroyed and that all electronic memories have been purged of any Confidential Information.
Aceeca may terminate this Agreement at any time, with or without cause, immediately upon written notice to Developer. Within seven (7) days of Developer's receipt of Aceeca’s termination notice, or earlier if requested by Aceeca, Developer will return the Software and all other Confidential Information as provided in this Section. All obligations of Developer under this Agreement will continue to bind Developer until Developer has fully complied with the foregoing requirements of this Section concerning the return of Aceeca materials. Following termination of this Agreement for any reason, the provisions of Sections 4, 5 and 7 through 17, shall survive.
9. DISCLAIMER OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ACEECA OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE OR OTHER CONFIDENTIAL INFORMATION OR ACEECA'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ACEECA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. NO ASSIGNMENT. Developer may not assign or otherwise transfer this Agreement or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Aceeca, which consent may be withheld in Aceeca’s sole discretion, and any attempted transfer or assignment is null and void and shall be deemed a material breach of this Agreement.
11. INJUNCTIVE RELIEF. Developer acknowledges and agrees that the copying, disclosure or use of the Software or Confidential Information in a manner inconsistent with any provision of this Agreement shall cause irreparable injury to Aceeca for which Aceeca will not have an adequate remedy at law. Accordingly, Aceeca shall be entitled to seek equitable relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions.
12. EXPORT LAW ASSURANCE. The Software and Confidential Information supplied hereunder is subject to all pertinent import and export laws of the United States, including specifically the U.S. Export Administration Regulations (“EAR”) and the laws of the country in which Developer obtained them. Developer agrees that it will be solely responsible for compliance with all such laws. In particular, Developer agrees that it will not export, re-export, or transfer, directly or indirectly, the Software to any person, firm or country on the Denied Persons List, Entity List, Debarred Parties or Specially Designated Nationals lists or to Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Federal Republic of Yugoslavia (Serbia only), Sudan, or Syria or any other country or entity designated by the U.S. Government as prohibited by U.S. law, or nationals thereof, and that it is not located in such a country or on such a list. Developer agrees that it will not transfer, export or re-export, directly or indirectly, for use or to users in military or proliferation activities (Nuclear, Missile, Chemical or Biological Weapons) without U.S. Government authorization (by export license or regulation). Developer agrees that, upon request, it will provide additional end use/end user information or written acceptance of requirements and responsibilities to comply with U.S. export license requirements. Developer agrees to be bound by any future modifications of the foregoing list of restricted destinations by amendments to the EAR or other U.S. government regulations. These requirements shall survive the term or termination of the Agreement.
13. NO TRADEMARK LICENSE. Developer acknowledges that Aceeca or its suppliers are the sole owners of all trademark rights in the marks Aceeca. Meazura, HotSync, Graffiti, Palm, Palm OS, PalmModem, PalmPoint, PalmConnect, Palm III, Palm V, Palm VII, Palm.Net and the Palm Powered logo. Developer agrees to do nothing inconsistent with such ownership. Developer acknowledges that this Agreement does not grant any rights to use any of the foregoing trademarks or any other trademark of Aceeca, its suppliers or any of their affiliates, even if such marks are included in any of the materials provided to Developer hereunder.
14. OWNERSHIP. All rights not expressly granted hereunder are reserved by Aceeca or its suppliers, and no rights or licenses are implied by this Agreement. Without limiting the foregoing, no right is granted to distribute all or any portion of the Software. The Software provided may only be used as expressly provided in Section 1 and for no other purpose whatsoever. Developer acknowledges and agrees that as between Aceeca and Developer, Aceeca owns all right, title and interest in and to the Software, including, but not limited to, any and all patents, copyrights, trade secrets, trademarks and other intellectual property and proprietary rights therein not expressly granted to Developer. Any ideas with respect to the Software and any modifications and the like made by Developer to the Software ("Supportive Information") will be the property of Aceeca or its suppliers. Developer agrees to assign, and hereby assigns, all right, title and interest worldwide in the Supportive Information and the related intellectual property rights to Aceeca and agrees to assist Aceeca, at Aceeca’s expense, in perfecting and enforcing such rights.
15. GOVERNMENT END USERS. The Software and related documentation are 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. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software and related documentation with only those rights set forth herein.
16. RELATIONSHIP OF THE PARTIES. Nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
17. ENGLISH LANGUAGE. The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soie nt rédigés en anglais.