UNVIRED DIGITAL ENTERPRISE PLATFORM (UDEP) – SOFTWARE LICENSE AGREEMENT

UNVIRED INC PROVIDES THE UNVIRED DIGITAL ENTERPRISE PLATFORM (“UDEP”) FOR THE DEVELOPMENT OF MOBILE AND/OR WEB APPLICATIONS IN TWO EDITIONS:

A) COMMERCIAL EDITION OF THE UNVIRED DIGITAL ENTERPRISE PLATFORM – ALLOWING COMPANIES (ALSO REPRESENTED AS “YOU” AND “YOUR”) TO DEVELOP MOBILE AND/OR WEB APPLICATIONS FOR THE PRODUCTIVE USE OF THEIR COMPANY (“YOUR APPLICATIONS”)

B) TRIAL EDITION OF THE UNVIRED DIGITAL ENTERPRISE PLATFORM – ALLOWING COMPANIES (ALSO REPRESENTED AS “YOU” AND “YOUR”) TO TRAIN DEVELOPERS OR FOR ENABLING A TRIAL OF MOBILE AND/OR WEB APPLICATIONS WITHIN THE COMPANY (“CUSTOM APPLICATIONS”). MOBILE AND/OR WEB APPLICATIONS BUILT AS PART OF THE TRAINING / TRIAL CANNOT BE USED FOR ANY PRODUCTION OR COMMERCIAL PURPOSE.

NOTE: THE UDEP WAS EARLIER NAMED AS UNVIRED MOBILE PLATFORM (UMP).  ALL REFERENCES TO UDEP BELOW ARE APPLICABLE TO UMP IF YOU HAVE THE PREVIOUS VERSION INSTALLED.

THE LICENSE GRANTED BELOW GOVERNS YOUR USE OF UDEP/UMP. THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND UNVIRED INC. AND ITS SUBSIDIARIES (COLLECTIVELY “UNVIRED”). PLEASE READ THIS LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE DOWNLOADING AND USING UDEP/UMP. IF YOU REPRESENT A LEGAL ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD AND USE UDEP/UMP.

THERE MAY BE ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO CERTAIN COMPONENTS OF UDEP/UMP, ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE. YOU AGREE TO ABIDE BY SUCH OTHER TERMS AND CONDITIONS. TO THE EXTENT THAT A CONFLICT EXISTS BETWEEN THE TERMS PROVIDED BELOW AND THOSE POSTED FOR OR APPLICABLE TO CERTAIN COMPONENTS OF UDEP/UMP, THE LATTER ARE CONTROLLING.

 

  1. UDEP/UMP COMMERCIAL EDITION: License to use, Restrictions
    1. Subject to the terms and conditions of this Agreement, Unvired grants You a non-exclusive and perpetual right to deploy the software and develop custom applications (unless terminated in accordance with Section 13) on One (1) NetWeaver™ /JBoss / WildFly or other Java Application Server landscape (Development-Test-Production) in Your company and for the licensed number of mobile devices. This license does not permit You to provide services to third parties like business process outsourcing, third party training etc. It also does not permit You to resell or derive any other commercial benefit from the software for any third parties.
    2. You agree to install software only on hardware identified by You in accordance with the requirements of Unvired. This License may be transferred to another NetWeaver™ / JBoss / Other Java Application Server instance, provided that the number of NetWeaver™ / JBoss / WildFly / Other Java Application servers concurrently running the software and custom application never exceeds the number of NetWeaver™ / JBoss / WildFly / Other Java Application servers specified in this License Agreement.

 

  1. UDEP/UMP TRIAL EDITION: License to use, Restrictions
    1. Subject to the terms and conditions of this Agreement, Unvired grants You a non-exclusive right to deploy the software for evaluation purpose and for a limited time as specified in the issued license file (unless terminated earlier) on One (1) NetWeaver™ /JBoss / WildFly / Other Java Application Server or One (1) Virtual Image by Unvired and for the licensed number of mobile devices. This license does not permit You to use the software productively or to provide services to third parties like business process outsourcing, third party training etc. It also does not permit You to resell or derive any other commercial benefit from the software for any third parties
  1. UDEP/UMP COMMERCIAL & TRIAL EDITIONS: Common terms, Restrictions
    1. You may make a reasonable number of copies of any Component so as to use the SDK for the intended purpose stated above.
    2. You may not distribute, sell, lease, lend or sublicense UDEP/UMP or any Component as an independent product.
    3. You may not modify, create derivative works, reverse engineer, reverse compile, or disassemble UDEP/UMP in any way other than for the intended purpose stated above. You also agree not to add or delete any program files that would modify the functionality and/or appearance of UDEP/UMP other than for the intended purposes stated above.
    4. You will not use UDEP/UMP with or to (i) develop any application or program containing viruses or code that is intended to damage or detrimentally interfere with or surreptitiously intercept or expropriate any system, data or information; (ii) that violates any law or regulation; or (iii) that interferes with the operation of any Unvired Product.
    5. You may not modify, distribute or convey UDEP/UMP or any code contained therein so that such API, code or any application to which it links, or which it is a part of, becomes subject to an Excluded License. An Excluded License is defined as one that requires, as a condition of license, use, modification, distribution or conveyance, that (i) the code be disclosed or distributed in source code form; (ii) others have the right to modify or create derivative works of it; or (iii) it becomes redistributable at no charge.

 

  1. Intellectual Property Rights.
    1. You understand and agree that Unvired and its suppliers retain all legal rights, title and interest (to include but not limited to patent, copyright, trademark, trade secret and moral rights) globally to any intellectual property included in the SDK. All rights are reserved. Accordingly, You agree not to assert any intellectual property rights related to the SDK against Unvired or its suppliers.
    2. You are expressly prohibited from using the Unvired trade name and Unvired Product names in any way and anywhere (to include but not limited to use in Your business’s trade names or business names, domain names, or product names) without prior authorization from Unvired.
    3. Unvired warrants that all intellectual property rights in the software reside with itself or its suppliers and that Unvired is entitled to enter into this Agreement and that use of the software by You is not in breach of any third party’s intellectual property rights.
    4. UDEP/UMP COMMERCIAL EDITION Only: Unvired agrees to indemnify You against all costs, claims and liabilities arising from breach of this warranty provided that you immediately notify Unvired about any alleged breach and render all reasonable assistance to Unvired (at Unvired’s cost) in defending any such claim.
    5. You agree that this License does not include ownership of the source-code for the software.
  1. Confidentiality.

You agree that UDEP/UMP is confidential and proprietary information of Unvired (“Confidential Information”). As part of Your activities associated with this Agreement, You may provide Confidential Information to Unvired. Confidential Information does not include information (i) that is or becomes public knowledge or is received by either party without any breach of any confidentiality obligation; (ii) that the receiving party can document was independently developed without use or access to the Confidential Information; or (iii) that the receiving party can document was previously known prior to receipt of the Confidential Information. Both parties agree to (i) use the Confidential Information only in connection with fulfilling their rights and obligations under this Agreement; (ii) hold the Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with their protection of their own confidential information but not less than reasonable care, (iii) not publish or disclose the Confidential Information except for disclosures to employees and subcontractors who have a bona fide need to know the Confidential Information. Both parties agree that any unauthorized disclosure of the Confidential Information would cause irreparable harm and that in the event of any breach or threatened breach of the above confidentiality obligations, the party owning the Confidential Information shall be entitled to obtain equitable relief in addition to any other remedy.

 

  1. Custom Applications: License terms, Restrictions
    1. The custom application (either on the server side or on the client side) may implement the business processes that are specific to You. As such the source code of such custom applications will be provided to You. Source code that implements business processes specific to You will be owned by You. When standard business processes (for e.g. Purchase Order approval) are developed and provided by Unvired, major portions of the code across customers may be similar. In such cases Your ownership will be restricted to portions of the custom application which are Your exclusive business process and a non-exclusive ownership for the rest of the custom application.
    2. Where standard applications are provided by Unvired with source code, the ownership of such applications will rest exclusively with Unvired and You get a non-exclusive, royalty free License grant to use the custom application.
  1. Third party copyright / Open source notices
    1. UDEP/UMP utilizes some open source components for its functionality. Unvired warrants that it has the permission to use these components as per the license terms under which these components are released. Unvired agrees to indemnify You against all costs, claims and liabilities arising from breach of this warranty provided that you immediately notify Unvired about any alleged breach and render all reasonable assistance to Unvired (at Unvired’s cost) in defending any such claim.
  1. Assignment

Licensee may not without Licensor’s prior written consent assign, delegate, pledge or otherwise transfer this agreement or any of its rights or obligations under this agreement to any party voluntarily or by operation of any law including by way of sale of assets, merger or consolidation.

  1. UDEP/UMP COMMERCIAL EDITION: Support
    1. In the event of any errors being found in UDEP/UMP over and above those known errors and limitations listed in the accompanying documentation and not including enhancements to the documented functionality of UDEP/UMP, Unvired agrees to provide updates (if a valid Support contract / agreement exists either as part of a Statement of Work or otherwise between You and Unvired) and the updates can be used on the same SAP NetWeaver™ / JBoss / WildFly / Other Java Application server originally licensed by You. Although Unvired will endeavor to keep UDEP/UMP error-free, Unvired specifically exclude any warranty to that effect, and also specifically deny any time span either express or implied for the correction of any errors found except as defined in the support level agreement.
    2. Versions of UDEP/UMP are released with specific support periods during which Unvired will provide updates for UDEP/UMP. You can continue to use the software even after the expiry of such support periods but Unvired may not be able to support. Unvired warrants that there will always be a current supported version of software and You shall always have an option to upgrade to the latest version of software at mutually agreed terms.
  1. UDEP/UMP TRIAL EDITION: No Support
    1. Unvired may but is under no obligation to provide updates, fix bugs or errors nor to address any other issues you may raise with the quality or performance of UDEP/UMP.
  1. Verification

Upon reasonable notice, Unvired or its designated third party shall have the right to conduct an internal audit of Your system to ensure compliance with this agreement. If the audit determines that You are out of compliance with this agreement, You shall be liable for all software and other expenses incurred during assessment.

  1. UDEP/UMP COMMERCIAL EDITION: Limited Warranties and Exclusions of Liability
    1. UNVIRED WARRANTS THAT THE SOFTWARE WILL SUBSTANTIALLY CONFORM TO THE FUNCTIONAL SPECIFICATIONS CONTAINED IN THE DOCUMENTATION FOR 3 MONTHS FOLLOWING DELIVERY OF UDEP/UMP. THE WARRANTY SHALL NOT APPLY: I) IF UDEP/UMP IS NOT USED IN ACCORDANCE WITH THE DOCUMENTATION; OR II) IF THE DEFECT IS CAUSED BY MODIFICATION EXCEPT BY UNVIRED OR AGENTS OF UNVIRED, THIRD-PARTY SOFTWARE, OR THIRD PARTY DATABASE. UNVIRED DOES NOT WARRANT THAT SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM MINOR DEFECTS OR ERRORS THAT DO NOT MATERIALLY AFFECT SUCH PERFORMANCE, OR THAT THE APPLICATIONS CONTAINED IN SOFTWARE ARE DESIGNED TO MEET ALL OF YOUR BUSINESS REQUIREMENTS.
    2. PROVIDED YOU NOTIFY UNVIRED IN WRITING WITH A SPECIFIC DESCRIPTION OF UDEP/UMP’S NON-CONFORMANCE WITHIN THE WARRANTY PERIOD AND UNVIRED CONFIRMS THE EXISTENCE OF SUCH NONCONFORMANCE, UNVIRED WILL, AT ITS OPTION: A) CORRECT THE NONCONFORMING COMPONENTS OF UDEP/UMP, OR B) REFUND THE LICENSE FEES PAID BY YOU FOR THE APPLICABLE UDEP/UMP LICENSE. YOU WILL IMMEDIATELY RETURN SUCH COPIES AND LICENSES OF UDEP/UMP AND DELETE/STOP USING INSTALLED COPIES. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY.
    3. EXCEPT FOR THE LIMITED WARRANTIES SET OUT ABOVE, UNVIRED MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF SUCH DISCLAIMER IS NOT PERMITTED BY LAW, THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO [30] DAYS FROM THE DATE OF DELIVERY.
    4. UNVIRED FURTHER WARRANTS THAT THE SOFTWARE IS FREE FROM BACKDOORS AND ANY FORM OF DISABLEMENT, WHICH WOULD DAMAGE OR RENDER ANY SYSTEM USING THE SOFTWARE INOPERABLE. UNVIRED FURTHER WARRANTS THAT EVEN IN THE EVENT OF THE BREACH OF THIS LICENSE BY YOU, UNVIRED WILL NOT IMPAIR THE OPERATION OF UDEP/UMP EXCEPT PURSUANT TO AN ORDER OF COURT.
  1. UDEP/UMP TRIAL EDITION:Warranty Disclaimer
    1. UNVIRED DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE USE OF UDEP/UMP, TO INCLUDE BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OR WARRANTIES THAT THE SDK WILL BE ACCURATE, FREE OF ERRORS OR DEFECTS, FREE OF VIRUSES OR CONTAMINATION, UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. UDEP/UMP IS PROVIDED “AS-IS”. YOU ASSUME ALL RISK ASSOCIATED WITH YOUR USE OF UDEP/UMP. YOUR SOLE REMEDY AGAINST UNVIRED FOR DISSATISFACTION WITH UDEP/UMP OR FOR ANY DAMAGE CAUSED THEREBY IS TO STOP USING UDEP/UMP. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

 

  1. No Liability for Consequential Damages

EXCEPT FOR UNVIRED’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS OF YOU AND UNVIRED HEREUNDER, IN NO EVENT SHALL UNVIRED BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF UDEP/UMP, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL UNVIREDS LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LICENSE FEE PAID BY YOU FOR UDEP/UMP.

  1. Prohibition of use in Life Critical Applications
    1. PROHIBITION OF USE IN LIFE-CRITICAL APPLICATIONS: UNVIRED EXPRESSLY DISCLAIM ANY LIABILITY RESULTING FROM USE OF UDEP/UMP IN LIFE CRITICAL APPLICATIONS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF UDEP/UMP IN ANY SUCH LIFE CRITICAL APPLICATIONS BY YOU. FOR PURPOSES OF THIS PARAGRAPH, THE TERM “LIFE-CRITICAL APPLICATION” MEANS AN APPLICATION IN WHICH THE FUNCTIONING OR MALFUNCTIONING OF UDEP/UMP MAY RESULT DIRECTLY OR INDIRECTLY IN PHYSICAL INJURY OR LOSS OF HUMAN LIFE.
  1. Export Controls.

The sale and/or distribution of any component of the SDK may be subject to the export and/or trade laws and regulations of the U.S. or other countries. U.S. restrictions, which You agree to adhere to are provided on the U.S. Department of Commerce website at http://www.bis.doc.gov/index.php/regulations/commerce-control-list-ccl

  1. Severability

In the event of invalidity of any provision of this Agreement, You and Unvired agree that such Invalidity shall not affect the validity of the remaining portions of this Agreement.

  1. Termination
    1. Unvired may forthwith terminate this Agreement (without prejudice to any prior accrued rights) in the event of the following:
      1. You fail to remedy any breach of this Agreement (insofar as such breach is reasonably capable of remedy) within 30 days of written notice of such breach
      2. You are subject to a bankruptcy or compulsory winding up notice or a receiving order or having an administrator appointed in respect of your affairs (save as part of a restructuring or amalgamation otherwise than by reason of your insolvency).
    2. You will forthwith on termination remove all copies of any part of UDEP/UMP from your SAP NetWeaver™ / JBoss / WildFly / Other Java Application Server(s) and deployed Mobile Devices and remove all license keys (if any).
  1. General
    1. If Unvired or You do not fully enforce rights under this Agreement at any time, it will not prevent from doing so later in respect of a particular breach or any future breach.
    2. Any notice served pursuant to this Agreement must be in writing, addressed to You or Unvired at the last known address and sent by:
      1. By mail, in which case the notice will (if properly addressed) be deemed received (if posted on a working day) after the next three working days or (if not posted on a working day) after five working days or
      2. By email or fax, in which case the notice will (if properly addressed) be deemed received immediately if received before 5:30 p.m. on a working day but if later, then on the next working day
      3. Neither Unvired or You will be responsible for any breach of this Agreement insofar as that breach is a result of something beyond their reasonable control but if that situation arises, the relevant party will do everything it reasonably can to overcome that problem as soon as reasonably possible.
      4. This Agreement is not intended to benefit anyone other than the signatories (Unvired and/or You) to it.
  1. Changes to this Agreement.
    1. Unvired shall have the right to unilaterally change or add to the terms of this Agreement at any time upon notice by any means Unvired determines in its discretion to be reasonable, including sending you an email notification or by simply referencing a newly revised version of the Agreement on its website with a notification via email to you. It is Your responsibility to review the most updated version thereof. By continuing to use UDEP/UMP following such modifications, You agree to be bound by such modifications.
    2. The Confidential Information, Warranty Disclaimer, Limitation of Liability and Indemnification sections set out in this Agreement shall survive any termination or expiration of this Agreement.
  1. Governing Law.

This Agreement is subject to the laws of Texas and the parties agree to submit all disputes for settlement to the Courts in Houston in the State of Texas. The parties hereby acknowledge that the language of this Agreement is English and that the original English-language version of this Agreement shall be the only authoritative version of this Agreement.