Form 23.F) F.4Form I.3
Software Development Kit License
(Clickwrap Agreement)
Welcome to the ______("Licensor") software development program (the “Program”). Participation in the Program will allow you to use the Licensor______Software Development Kit (the “SDK”), and the related webOS developer website (the “Developer Website”). Before you (“You” or “Developer”) access and/or use any Licensor Materials (as defined below), please read the terms and conditions of use set forth below. Access to and use of the Licensor Materials is subject to the terms and conditions set forth in this Licensor Software Development Kit License Agreement (the "Agreement"). The Agreement is effective as of the date You accept these terms (the “Effective Date”). If you accept the terms and conditions of this Agreement, please click on the "Accept" button below. If you do not agree to the terms and conditions of this Agreement, you may not use or access any Licensor Materials or participate in the Program. USING OR ACCESSING ANY PART OF THE SDK, DEVELOPER WEBSITE OR LICENSOR MATERIALS INDICATES THAT YOU ACCEPT THESE TERMS.
If you are participating in the Program or accessing the Licensor Materials in connection with work you are doing for a company or corporate entity (“Company”), either as an employee or contractor, the term “Developer” includes both you as an individual as well as such Company. In addition, you represent and warrant that you have the authority to bind such Company, and that such Company has authorized you to accept the terms of this Agreement.
In an effort to provide better and more useful information to its developers, Licensor may change or add certain materials on the Developer Website, or change or add to certain aspects of the Program. These changes may require changes to the terms and conditions of this Agreement. As such, Licensor reserves its right, at any time and from time to time, to change or modify the terms and conditions of the Program by posting new or revised terms and conditions to the Developer Website, or by providing such terms and conditions to you in writing, including via email. If you do not agree to the new or modified terms and conditions of this Agreement, you may not continue your participation in the Program, and you may not use or access the Licensor Materials. PARTICIPATING IN THE PROGRAM, OR USING OR ACCESSING ANY PART OF THE DEVELOPER WEBSITE OR LICENSOR MATERIALS AFTER LICENSOR POSTS OR INFORMS YOU OF NEW OR MODIFIED TERMS AND CONDITIONS, INDICATES THAT YOU ACCEPT ANY CHANGES TO THESE TERMS.
1.Definitions. In addition to any other terms which are defined in the body of this Agreement, the following terms have the following meanings:
1.1“API(s)” means any application program interface that is provided to Developer in the Licensor Materials or otherwise by Licensor to Developer.
1.2 "Application" means one or more software application programs that are developed by Developer using the Licensor Materials, solely for use with Licensor Devices, including bug fixes, updates, upgrades, new releases and new versions of such software application programs.
1.3“Derivative Work" shall mean a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement under the United States Copyright Act.
1.4“Developer Website” means the website provided by Licensor to developers in order to facilitate use of the SDK.
1.5“Framework” means a set of APIs or widgets which are used to support the development of applications.
1.6 “Intellectual Property Rights” means all worldwide, current or future, copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, create derivative works of, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, have made, use, sell and offer to sell, import and export), trade secrets, moral rights, right of publicity, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence, and all renewals, continuations, continuations in part and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.7“Mojo Framework Code” means the Mojo framework software code contained in the SDK directory found at “<sdk root>/share/refcode/framework”..
1.8 “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
1.9“Licensor Application Catalog” means the Licensor-branded application catalog, which will serve as the sole mechanism for licensed commercial distribution of Applications.
1.10 “Licensor App Code” means webOS core application software code and related documentation contained in the SDK directory found at “<sdk root>/share/refcode/applications”.
1.11“Licensor Devices” means Licensor branded handheld computing and/or communication devices which operate on the Licensor webOS operating system.
1.12“Licensor Materials” means software, services or other materials available through the SDK or the Developer Website, including but not limited to the Licensor Modifiable Code.
1.13“LicensorModifiable Code” means collectively, the Licensor Sample Code, Licensor App Code, the Licensor Visual Assets and Mojo Framework Code.
1.14“Licensor Proprietary Software” means any software or software components, tools, libraries, modules or packages included within the Licensor Materials that are not Open Source Software, including all documentation related to the Licensor Materials.
1.15"Licensor Sample Code" means the software code contained in the SDK directory found at “<sdk root>/share/samplecode”.
1.16“Licensor Visual Assets” means any visual assets, except for any third-party visual assets listed in “<sdk root>/share/doc/legal/readme.txt” or other third-party visual assets, contained in the following SDK directories: “<sdk root>/share/refcode/applications”, “<sdk root>/share/refcode/framework”, and “<sdk root>/share/samplecode”.
1.17“Personally Identifiable Information” means information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.
1.18“Privacy Policy” means Developer’s written policy that it makes available to all end users setting forth Developer’s practices relating to the use, collection, storage and sharing of data relating to or transmitted through the Application by end users.
2.Permitted Disclosures by Developers.Licensor acknowledges and agrees that it is valuable for developers in the Program to be able to communicate with other developers and the general public about their development efforts and their applications.Licensor agrees that Developer shall have the ability to discuss the Licensor Materials, Developer’s development efforts and Developer’s Application(s) with any third party, including but not limited to blogging, website postings, and public presentations; provided however, that IN NO CASE MAY DEVELOPER PUBLISH, REPRODUCE OR DISTRIBUTE THE LICENSOR MATERIALS, except as expressly licensed in Section 3.
3.Developer’s License to Use the Licensor Materials.
3.1 The Licensor Materials are Licensed Solely for Your Individual Use.You shall use the Licensor Materials solely in accordance with the terms of this Agreement and may not provide the Licensor Materials or access to the Developer Website to any other individual or third party. If the Licensor Materials are going to be used by You in your capacity as an employee of a company, You must (i) agree to this Agreement on behalf of your company, (ii) represent and warrant that you have the authority to bind your company to the terms and conditions of this Agreement, and (iii) use the Licensor Materials solely on behalf of and for purposes of your company. In addition, if You accept this Agreement on behalf of a Company, You may share the Licensor Materials with other employees and individuals doing work for your Company, provided such individuals have a need to know the information to facilitate your Company’s development of Applications using the Licensor Materials.
3.2 License for Licensor Materials.
(a)Internal Use of Licensor Materials. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Developer a non-exclusive, non-transferable, non-sublicensable, personal license to internally use the Licensor Materials (excluding any Open Source Software that may be included in the Licensor Materials, which software is licensed in accordance with Section 3.3) solely for the purpose of developing and testing Applications, and not for purposes of any distribution, commercial or otherwise, except as otherwise expressly provided herein. EXCEPT AS EXPRESSLY PERMITTED IN THIS SECTION 3.2, DEVELOPER MAY NOT SUBLICENSE, PROVIDE OR REDISTRIBUTE ANY PORTION OF THE LICENSOR MATERIALS TO ANY THIRD PARTY.
(b)Limited License for Licensor Modifiable Code.Subject to the terms and conditions of this Agreement and Section 3.2(c), Licensor hereby grants to Developer a non-exclusive, non-transferable, non-sublicensable, personal license to:
(i)create Derivative Works of the Licensor Modifiable Code solely for the purpose of developing and testing Applications for Licensor Devices; and
(ii)distribute the Licensor Modifiable Code and Derivative Works thereof, solely through the Licensor Application Catalog for use with Licensor Devices, unless otherwise agreed in writing between the parties.
(c)Impermissible Use of Modifiable Code.Notwithstanding the provisions of Section 3.2(b) above, Developer MAY NOT USE, REPRODUCE OR DISTRIBUTE ANY APPLICATION, TOOL, FRAMEWORK OR SOFTWARE WHICH CONTAINS, ENCAPSULATES OR REPRODUCES THE MOJO FRAMEWORK IN WHOLE OR SUBSTANTIAL PART.
(d)Attribution. Developer agrees that any Derivative Work (except for Derivative Works of the Licensor Visual Assets) created pursuant to Section 3.2(b) shall include the following copyright notice within Developer’s source code and in the location of Developer’s own copyright notice: “Portions copyright © Licensor, Inc., or its subsidiaries. All rights reserved.” Developer agrees not to remove, alter or obscure any product identification, copyright or other notices embedded within or on the Licensor Modifiable Code.
(e)Reservation of Rights. Except as expressly provided herein, no other right or license is granted by Licensor under this Agreement. All rights not expressly granted hereunder are expressly reserved to Licensor and its licensors.
3.3 Open Source Software. Developer hereby acknowledges that the Licensor Materials may contain Open Source Software. Developer agrees to review any documentation that accompanies the Licensor Materials or is identified in a link provided in the documentation for the Licensor Materials in order to determine which portions of the Licensor Materials are Open Source Software and are licensed under an Open Source Software license. To the extent any such license requires that Licensor provide Developer the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Developer in this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. Developer acknowledges that the Open Source Software license is solely between Developer and the applicable licensor of the Open Source Software. Developer shall comply with the terms of all applicable Open Source Software licenses, if any.
3.4 Licensor Proprietary Software. At no time shall Developer distribute any Licensor Proprietary Software as Open Source Software, or do anything (including but not limited to the development of the Application) that in any way would cause such Licensor Proprietary Software to be subject to any Open Source Software or similar license.
3.5 No Endorsement. Developer agrees that unless Developer receives the express prior written authorization of Licensor, Developer will not: (a) market Applications developed using the Licensor Materials in any manner which implies that Licensor or its suppliers endorse such products; or (b) use the image or likeness (e.g., photograph, drawing, etc.) of a Licensor Device or other Licensor product for any purpose (including, without limitation, in any advertisements, on Developer’s website, or on the packaging, marketing materials or collateral for any Applications).
3.6 Third-Party APIs and Content.Certain portions of Licensor Materials, including APIs and content provided through use of the SDK, may be provided by third parties. These third parties may require separate or different terms for use of their materials. Either Licensor or the applicable third party will provide Developer with the applicable terms and conditions either through an email notification, a conspicuous posting on the Developer Website, or via a click through agreement.
3.7 General Restrictions. Except as expressly provided herein, Developer shall not (and shall not allow or enable any third party, including end users of its Application(s) to):
(a)copy, modify, create a derivative work of, sublicense, rent, sell, lease or otherwise transfer or distribute the Licensor Materials or any portion thereof (except as expressly permitted herein solely with respect to the Licensor Modifiable Code) to any person or entity, except as expressly provided in this Agreement;
(b)decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of Licensor Materials by any means whatsoever;
(c)remove any product identification, legal, copyright, trademark or other proprietary rights notices contained in the Licensor Materials;
(d)engage in any activity with the Licensor Materials, including development and distribution of an Application, that interferes with, disrupts, damages or accesses in an unauthorized manner the servers, networks, or other properties or services of Licensor or any third party including, but not limited to, any mobile communications carrier;
(e)use the Licensor Materials for any fraudulent, unlawful or illegal activity, including developing an Application that would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act;
(f)use the Licensor Materials to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as intellectual property rights and rights of privacy and publicity) of others, including developing an Application that would facilitate any such activities;
(g)use the Licensor Materials to use, display, transmit or otherwise make available content that promotes pyramid schemes, chain letters or disruptive commercial messages or advertisements, including developing an Application that would facilitate any such activities;
(h)sell, lease, share, transfer, sublicense or derive income from the use or provision of the APIs, whether for direct commercial or monetary gain or otherwise, without Licensor’s prior written permission;
(i)use the APIs in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation as determined by Licensor in its sole discretion.
3.8 Additional Restrictions and Requirements for Location-Based Services APIs. If Developer utilizes Licensor’s Location-Based Services APIs (the “LBS APIs”), the following additional terms shall apply:
(a)Developer acknowledges and agrees that data provided to Developer through the LBS APIs may be provided by Google or other third parties. The parties expressly agree that Google shall be considered a third-party beneficiary to this Agreement.
(b)Developer acknowledges and agrees that it may not charge its end users any premium for utilization of the LBS APIs in Applications, above and beyond any normal charge for such Application.
(c) Developer acknowledges and agrees that Developer shall not use the LBS APIs or the content provided through the LBS APIs:
(i)except for getting an initial location fix, to provide real time route guidance (including without limitation, turn-by-turn route guidance and other routing that is enabled through the use of a sensor);
(ii)in conjunction with any systems or functions for automatic or autonomous control of vehicles, aircraft, or other mechanical devices;
(iii)in conjunction with dispatch, fleet management or similar applications; or
(iv)for emergency or life-saving purposes.
(d) Developer acknowledges and agrees that, except on end-user devices, it will not cache or store Cell ID or Wifi address information along with related latitude/longitude information.
3.9 Additional Restrictions and Requirements for Embedded Mobile Web Maps Google Site. If Developer embeds an access point which, when selected by an end user, launches a Mobile Web Maps Google site (the “MWM Google Site”) in a web view, Developer acknowledges and agrees that:
(a)it will be bound by the terms of services located at
(b)it will not open or display any URLs within such web view except for the MWM Google Site, and any subdomains thereof; and
(c)it will render the MWM Google Site in the full available screen area between the status bar and notification bar, or in the minimized card view only (no other sizings for the MWM Google Site in web view shall be allowed).