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MICROSOFT MOBILE SENSORCORE SDK BETA License AGREEMENT

(June 2014)

1. Introduction.

Microsoft Mobile is providing you with certain software and documentation owned by Microsoft Mobile or its licensors (“Software”) intended for Windows Phone 8.x application developers that provides contextuality and sensing via always-on sensors and location awareness (the “Features”). This agreement is between you and Microsoft Mobile Oy located at Keilalahdentie 4, FIN-02150 Espoo, Finland.

2. Acceptance.

2.1 In order to use the Software, you must first agree to this Microsoft Mobile SensorCore SDK Beta License Agreement (the “Agreement”). You may not use the Software if you do not accept this Agreement.

2.2 By clicking to accept, you hereby agree to the terms of this Agreement.

2.3 You may not use the Software and may not accept the Agreement if you are a person barred from receiving the Software under the laws of the United States or other countries including the country in which you are resident or from which you use the Software.

2.4 If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the Software on behalf of your employer or other entity.

3. Software License from Microsoft Mobile.

3.1 Subject to the terms of this Agreement, Microsoft Mobile grants you a limited, worldwide, royalty-free, non-assignable, non-transferrable, non-sublicensable and non-exclusive license to use the Software solely for the purpose of developing, testing and publishing applications to be executed in the native Windows Phone 8.x (or any successor Windows Phone platform) environment with devices that include the Features.

3.2 You agree that Microsoft Mobile or third parties own all legal right, title and interest in and to the Software, including any Intellectual Property Rights that subsist in the Software.  "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights.  Microsoft Mobile reserves all rights not expressly granted to you.  For clarity, there are no patent rights licensed with the Software or pursuant to this Agreement.

3.3 You may not use the Software for any purpose not expressly permitted by this Agreement.  To the extent and insofar as the Software includes any Open Source material (if any), the relevant Open Source license applies. “Open Source” means any material, which is, as included in the Software, subject to any license terms and conditions currently listed at http://opensource.org/licenses/ or meeting the criteria listed at http://www.opensource.org/docs/definition.php, or which is subject to any similar free or open source license terms.

3.4 You agree that the form and nature of the Software that Microsoft Mobile provides may change without prior notice to you and that future versions of the Software may be incompatible with applications developed on previous versions of the Software.  You agree that Microsoft Mobile may discontinue (permanently or temporarily) providing the Software to you or to users generally at Microsoft Mobile’s sole discretion, without prior notice to you.  You agree that Microsoft Mobile may charge for use of the Software, in its sole discretion, at a future date by providing thirty (30) days prior notice of the applicable fees. In the event Microsoft Mobile decides to charge a fee in the future, you may discontinue using the Software if you do not wish to be charged.

3.5 You agree to include the following notice within your application that is reasonably calculated to make any person that uses, views, accesses, or otherwise interacts with your application aware that your application uses the Software:

Contains functionality provided by the Microsoft Mobile SensorCore SDK. Copyright © 2014, Microsoft Mobile Oy. All rights reserved.

3.6 You agree not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Software.

4. Your Use of the Software.

4.1 Microsoft Mobile agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any applications that you develop using the Software.

4.2 You agree to use the Software to develop applications only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

4.3 You agree that the applications you develop using the Software will comply with Microsoft Corporation’s Windows Phone Store requirements, including requirements around the acceptability of content, privacy and security.

4.4 You agree that you are solely responsible for (and that Microsoft Mobile has no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display through the Windows Phone Store, or any Windows Phone device, and for the consequences of your actions (including any loss or damage which Microsoft Mobile may suffer) by doing so.

5. Privacy.

The information Microsoft Mobile collects will be governed by Microsoft Mobile’s Privacy Policy. You agree that Microsoft Mobile may share the information it collects with Microsoft Corporation.

6. Term and Termination.

6.1 This Agreement will continue to apply until terminated by either you or Microsoft Mobile as set out below.

6.2 If you want to terminate this Agreement, you may do so by ceasing your use of the Software.

6.3 Microsoft Mobile may at any time, terminate this Agreement with you if (i) you have breached any provision of this Agreement; (ii) if required to do so by law; or (iii) Microsoft Mobile decides to no longer provide or support the Software.

6.4 When this Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Microsoft Mobile have benefited from, been subject to (or which have accrued over time while the Agreement has been in force) or which are expressed to continue indefinitely, will be unaffected by this cessation, and the provisions of Section 12.1 will continue to apply to such rights, obligations and liabilities indefinitely.

7. DISCLAIMER OF WARRANTIES.

7.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM MICROSOFT MOBILE.

7.2 YOUR USE OF THE SOFTWARE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH IT IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.

7.3 MICROSOFT MOBILE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. LIMITATION OF LIABILITY.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MICROSOFT MOBILE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT MICROSOFT MOBILE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

9. Indemnification.

To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Microsoft Mobile, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (i) your use of the Software, (b) any application you develop on the Software that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by you with this Agreement.

10. Changes to the Agreement.

Microsoft Mobile may make changes to the Agreement as it distributes new versions of the Software.  When these changes are made, Microsoft Mobile will make a new version of the Agreement available on the website where the Software is made available.

11. Confidentiality.

You expressly understand and agree that the Software you receive is confidential and non-public until such time as Microsoft Mobile and/or Microsoft publicly and officially announces the Software and/or Windows Phone devices that include the Features, and you agree not to disclose the Software, or any application incorporating the Software to any third-party until such time as Microsoft Mobile and/or Microsoft makes such public, official announcement.

12. Miscellaneous.

12.1 Dispute Resolution; Governing Law. Except where prohibited by applicable law or provided otherwise herein, this Agreement will be governed by the laws of Finland without regard to its conflict of law provisions. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, will be settled by arbitration under the Rules of Arbitration of the Finnish Central Chamber of Commerce. The arbitral tribunal will be composed of a sole arbitrator located in Helsinki, Finland in English. Nothing in this Agreement will limit Microsoft Mobile’s right to seek interim injunctive relief or to enforce an arbitration award in any court of law.

12.2 Assignment. The rights granted in this Agreement may not be assigned or transferred by you without the prior written approval from Microsoft Mobile. You will not be permitted to delegate your responsibilities or obligations under this Agreement without the prior written approval from Microsoft Mobile. Any attempted assignment of this Agreement by you without prior written approval from Microsoft Mobile will be null and void. This Agreement will also be assigned automatically by Microsoft Mobile (without need of providing notice) to the acquiring entity in the event of sale or other transfer of any assets that are material to this Agreement (whether in a single transaction or series of transactions).

12.3 Severability. If any court of law or tribunal, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.

12.4 Relationship of the Parties. The parties acknowledge that other than the contractual relationship established by this Agreement, this Agreement will not be construed as creating any other relationship, or agency, partnership, employment, joint venture, fiduciary duty, or franchise, or any other form of legal association between you and Microsoft Mobile. This Agreement is not for the benefit of any third parties.

12.5 Notices. Any notices relating to this Agreement must be provided to Microsoft Mobile in writing at the following address: Microsoft Mobile SensorCore SDK, Attn: Microsoft Mobile Oy, Keilalahdentie 4, FIN–02150 Espoo, Finland.

12.6 Waiver and Construction. You agree that if Microsoft Mobile does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Microsoft Mobile has the benefit of under any applicable law), this will not be taken to be a formal waiver of Microsoft Mobile’s rights and that those rights or remedies will still be available to Microsoft Mobile. You agree that any laws, regulations or case law that provides that the language of a contract will be construed against the drafter will not apply to this Agreement.

12.7 Export Control. Software provided hereunder is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to distribution of your applications. These laws include restrictions on destinations, users and end use. In particular, but without limitation, there are export restrictions (i) into any United States embargo countries; and (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List. You represent and warrant that You are not located in any such country or on any such list.

12.8 Entire Agreement. This Agreement constitutes the entire legal agreement between you and Microsoft Mobile, governs your use of the Software, and supersedes all prior understandings and agreements between you and Microsoft Mobile regarding the Software.


Last updated 4 June 2014

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