Qt COMMERCIAL CREATOR LICENSE AGREEMENT Agreement version 1.4 This Qt Commercial Creator License Agreement ("Agreement") is a legal agreement between Digia Finland Ltd ("Digia"), with its registered office at Valimotie 21, FI-00380 Helsinki, Finland and you (either an individual or a legal entity) ("Licensee") for Qt Commercial Creator (as defined below). 1. Definitions "Affiliate" of a Party shall mean an entity (i) which is directly or indirectly controlling such Party; (ii) which is under the same direct or indirect ownership or control as such Party; or (iii) which is directly or indirectly owned or controlled by such Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50 %) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body. "Applications" shall mean Licensee's software products created using Qt Commercial Creator and either (i) Digia Qt Commercial software products, or (ii) third party software products. "Qt Commercial Creator" shall mean the cross-platform integrated development environment (IDE) that is delivered to Licensee by Digia under this Agreement and designed to assist with development using Digia Qt Commercial software products or other third party software products. "Designated User(s)" shall mean the employee(s) of Licensee acting within the scope of their employment or Licensee's consultant(s) or contractor(s) acting within the scope of their services for Licensee and on behalf of Licensee for whom Licensee has purchased Digia Qt Commercial software licenses. "Initial Term" shall mean the period of time one (1) year from the later of (a) the Effective Date; or (b) the date Qt Commercial Creator was initially delivered to Licensee by Digia. If no specific Effective Date is set forth in the Agreement, the Effective Date shall be deemed to be the date the Solution was initially delivered to Licensee. "Digia Qt Commercial" shall mean the Qt computer software, "online" or electronic documentation, associated media and printed materials, including the source code, example programs and the documentation delivered by Digia to Licensee for the platforms supported by Qt Commercial Creator. "Party or Parties" shall mean Licensee and/or Digia. "Redistributables" shall mean the object code of the Digia Qt Commercial software products that may be distributed with or as part of Applications as specified in the Digia Qt Commercial software license agreement. "Support" shall mean standard email based developer support that is provided by Digia to assist eligible Designated Users in using Qt Commercial Creator in accordance with its established support procedures listed at: http://qt.digia.com/files/pdf/licenses/qt-commercial-standard-support-terms-and-conditions.pdf "Updates" shall mean a release or version of Qt Commercial Creator containing enhancement, new features, bug fixes, error corrections and other changes that are generally made available to users of Qt Commercial Creator that have contracted for maintenance and support. 2. Ownership Qt Commercial Creator and Digia Qt Commercial software products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Qt Commercial Creator is licensed, not sold. To the extent Licensee submits bug fixes or error corrections, including information related thereto, Licensee hereby grants to Digia a sublicensable, irrevocable, perpetual, worldwide, non-exclusive, royalty-free and fully paid-up copyright and trade secret license to reproduce, adapt, translate, modify, and prepare derivative works of, publicly display, publicly perform, sublicense, make available and distribute error corrections and bug fixes, including derivative works thereof. To the extent any rights do not automatically vest in Digia, Licensee assigns, and shall ensure that all of its Affiliates, agents, subcontractors and employees assign, all such rights to Digia. All Nokia’s, Digia's and its licensors' trademarks, service marks, trade names, logos or other words or symbols are and shall remain the exclusive property of Nokia, Digia or its licensors respectively. 3. Validity of the Agreement By installing, copying, or otherwise using Qt Commercial Creator, Licensee agrees to be bound by the terms of this Agreement. If Licensee does not agree to the terms of this Agreement, Licensee may not install, copy, or otherwise use Qt Commercial Creator. In addition, by installing, copying, or otherwise using any Updates or other components of Qt Commercial Creator that Licensee receives separately as part of Qt Commercial Creator, Licensee agrees to be bound by any additional license terms that accompany such Updates, if any. If Licensee does not agree to the additional license terms that accompany such Updates, Licensee may not install, copy, or otherwise use such Updates. Upon Licensee's acceptance of the terms and conditions of this Agreement, Digia grants Licensee the right to use Qt Commercial Creator in the manner provided below. 4. Licenses 4.1 Using, modifying and copying Digia grants to Licensee a non-exclusive, non-transferable, perpetual license to use and copy Qt Commercial Creator for the Designated User(s) for whom Licensee has purchased Digia Qt Commercial software licenses. Such use shall be for the sole purposes of designing, developing and testing Applications. Licensee may install copies of Qt Commercial Creator on an unlimited number of computers provided that only the Designated Users use Qt Commercial Creator. Licensee may at any time designate another Designated User to replace a then-current Designated User by notifying Digia, provided that a) the then-current Designated User has not been designated as a replacement during the last six (6) months; and b) there is no more than the specified number of Designated Users at any given time. 4.2 Distribution Licensee may distribute unmodified versions of Qt Commercial Creator in object code form. The distribution of the Digia Qt Commercial software-based Applications and Redistributables shall be governed by the applicable Digia Qt Commercial software license agreement between Licensee and Digia. The distribution of Applications that do not contain Digia Qt Commercial software or Redistributables shall be governed by the terms and conditions contained in such third party software licenses and are not covered by this Agreement. Except as set forth herein, Licensee shall not transfer, assign or otherwise dispose of Qt Commercial Creator. 4.3 Further Requirements The licenses granted in this Section 4 by Digia to Licensee are subject to Licensee's compliance with Section 7 of this Agreement. 5. Verification Digia or a certified auditor on Digia's behalf, may, upon its reasonable request and at its expense, audit Licensee with respect to the use of Qt Commercial Creator. Such audit may be conducted by mail, electronic means or through an in-person visit to Licensee's place of business. Any such in-person audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities. Digia shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that Licensee is using Qt Commercial Creator in a way that is in material violation of the terms of the Agreement, then Licensee shall pay Digia's reasonable costs of conducting the audit. In the case of a material violation, Licensee agrees to pay Digia any amounts owing that are attributable to the unauthorized use. In the alternative, Digia reserves the right, at Digia's sole option, to terminate the licenses for Qt Commercial Creator. 6. Third Party Software Qt Commercial Creator may provide links to third party libraries or code (collectively "Third Party Software") to implement various functions. Third Party Software does not comprise part of Qt Commercial Creator. In some cases, access to Third Party Software may be included along with the Qt Commercial Creator delivery as a convenience for development and testing only. Such source code and libraries may be listed in the ".../src/3rdparty" source tree delivered with Qt Commercial Creator (if applicable) or documented in Qt Commercial Creator where the Third Party Software is used, as may be amended from time to time, do not comprise part of Qt Commercial Creator. Licensee acknowledges (1) that some part of Third Party Software may require additional licensing of copyright and patents from the owners of such, and (2) that distribution of any of Qt Commercial Creator referencing any portion of a Third Party Software may require appropriate licensing from such third parties. 7. Additional Conditions The licenses rights granted in this Agreement are subject to all of the following conditions: (i) Licensee may not remove or alter any copyright, trademark or other proprietary rights notice contained in any portion of Qt Commercial Creator; (ii) Licensee shall indemnify and hold Digia, its Affiliates, contractors, and its suppliers, harmless from and against any claims or liabilities arising out of the use, reproduction or distribution of Applications created with the assistance of Qt Commercial Creator; (iii) Applications must be developed using a licensed, registered copy of Qt Commercial Creator and the relevant Qt Software product; and (iv) Licensee may not use Digia's or any of its suppliers' names, logos, or trademarks under this Agreement. NOTE: The Open Source Editions of Qt products and the Qt, Qtopia and Qt Extended versions previously licensed by Trolltech (collectively referred to as "Products") are licensed under the terms of the GNU Lesser General Public License version 2.1 ("LGPL") and the GNU General Public License versions 2.0 and 3.0 ("GPL") (as applicable) and not under this Agreement. If Licensee, or another third party, has, at any time, developed all (or any portions of) the Application(s) using a version of one of these Products licensed under the LGPL or the GPL, Licensee may not combine such development work with the Licensed Software and must license such Application(s) (or any portions derived there from) under the terms of the GNU Lesser General Public License version 2.1 (Qt only) or GNU General Public License version 2.0 (Qt, Qtopia and Qt Extended) or version 3 (Qt only) copies of which are located at http://www.gnu.org/licenses/old-licenses/lgpl-2.1.html, http://www.fsf.org/licensing/licenses/info/GPLv2.html, and http://www.gnu.org/copyleft/gpl.html . 8. Limited Warranty and Warranty Disclaimer Digia hereby represents and warrants with respect to Qt Commercial Creator that it has the power and authority to grant the rights and licenses granted to Licensee under this Agreement. Except as set forth above, Qt Commercial Creator is licensed to Licensee "as is". To the maximum extent permitted by applicable law, Digia on behalf of itself and its suppliers, disclaims all warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement with regard to Qt Commercial Creator. 9. Limitation of Liability If, Digia's warranty disclaimer notwithstanding, Digia is held liable to Licensee, whether in contract, tort or any other legal theory, based on Qt Commercial Creator, Digia's entire liability to Licensee and Licensee's exclusive remedy shall be, at Digia's option, either (A) return of the price Licensee paid for Qt Commercial Creator, or (B) repair or replacement of Qt Commercial Creator, provided Licensee returns to Digia all copies of Qt Commercial Creator as originally delivered to Licensee. Digia shall not under any circumstances be liable to Licensee based on failure of Qt Commercial Creator if the failure resulted from accident, abuse or misapplication, nor shall Digia under any circumstances be liable for special damages, punitive or exemplary damages, damages for loss of profits or interruption of business or for loss or corruption of data. Any award of damages from Digia to Licensee shall not exceed the total amount Licensee has paid to Digia in connection with this Agreement. 10. Support Support will be made available by Digia to Licensee under the Digia Qt Commercial software license agreement executed between Digia and Licensee, if any. The scope of such support, if any, shall be limited to supported platforms and shall be subject to the support policies and procedures which may be changed from time to time. Following the Initial Term, Digia shall no longer make Qt Commercial Creator available to Licensee unless Licensee purchases additional Support and Updates. Licensee may purchase additional Support and Updates following the Initial Term at Digia's terms and conditions applicable at the time of renewal. 11. Confidentiality Each party acknowledges that during the Initial Term of this Agreement it shall have access to information about the other party's business, business methods, business plans, customers, business relations, technology, and other information, including the terms of this Agreement, that is confidential and of great value to the other party, and the value of which would be significantly reduced if disclosed to third parties (the "Confidential Information"). Accordingly, when a party (the "Receiving Party") receives Confidential Information from another party (the "Disclosing Party"), the Receiving Party shall, and shall obligate its employees and agents and employees and agents of its affiliates to: (i) maintain the Confidential Information in strict confidence; (ii) not disclose the Confidential Information to a third party without the Disclosing Party's prior written approval; and (iii) not, directly or indirectly, use the Confidential Information for any purpose other than for exercising its rights and fulfilling its responsibilities pursuant to this Agreement. Each party shall take reasonable measures to protect the Confidential Information of the other party, which measures shall not be less than the measures taken by such party to protect its own confidential and proprietary information. "Confidential Information" shall not include information that (a) is or becomes generally known to the public through no act or omission of the Receiving Party; (b) was in the Receiving Party's lawful possession prior to the disclosure hereunder and was not subject to limitations on disclosure or use; (c) is developed by employees of the Receiving Party or other persons working for the Receiving Party who have not had access to the Confidential Information of the Disclosing Party, as proven by the written records of the Receiving Party or by persons who have not had access to the Confidential Information of the Disclosing Party as proven by the written records of the Receiving Party; (d) is lawfully disclosed to the Receiving Party without restrictions, by a third party not under an obligation of confidentiality; or (e) the Receiving Party is legally compelled to disclose the information, in which case the Receiving Party shall assert the privileged and confidential nature of the information and cooperate fully with the Disclosing Party to protect against and prevent disclosure of any Confidential Information and to limit the scope of disclosure and the dissemination of disclosed Confidential Information by all legally available means. The obligations of the Receiving Party under this Section shall continue during the Initial Term and for a period of five (5) years after expiration or termination of this Agreement. To the extent that the terms of the Non-Disclosure Agreement between Digia and Licensee conflict with the terms of this Section 11, this Section 11 shall be controlling over the terms of the Non-Disclosure Agreement. 12. General Provisions 12.1 Marketing Digia may include Licensee's company name and logo in a publicly available list of Digia customers and in its public communications. 12.2 No Assignment Licensee shall not be entitled to assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of Digia, which shall not be unreasonably withheld. Digia shall be entitled to assign or transfer any of its rights, benefits or obligations under this Agreement on an unrestricted basis. 12.3 Termination Digia may terminate the Agreement at any time immediately upon written notice by Digia to Licensee if Licensee breaches this Agreement. Either party shall have the right to terminate this Agreement immediately upon written notice in the event that the other party becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, has a receiver, administrative receiver or officer appointed over the whole or a substantial part of its assets, ceases to conduct business, or an act equivalent to any of the above occurs under the laws of the jurisdiction of the other party. Upon termination of this Agreement, Licensee shall return to Digia all copies of Qt Commercial Creator that were supplied by Digia. All other copies of Qt Commercial Creator in the possession or control of Licensee must be erased or destroyed. An officer of Licensee must promptly deliver to Digia a written confirmation that this has occurred. 12.4 Surviving Sections Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall also be deemed to survive. Such terms and conditions include, but are not limited to the following Sections: 2, 4.1, 5, 6, 7(ii), 9, 11, 12.5, 12.8, 12.9 and 12.10 of this Agreement. Notwithstanding the foregoing, Section 4.1 shall not survive if the Agreement is terminated for material breach. 12.5 Entire Agreement This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein, with the exception of the non-disclosure agreement executed by the parties in connection with this Agreement ("Non-Disclosure Agreement"), if any, shall be subject to Section 12. No modification of this Agreement shall be effective unless contained in a writing executed by an authorized representative of each party. No term or condition contained in Licensee's purchase order shall apply unless expressly accepted by Digia in writing. If any provision of the Agreement is found void or unenforceable, the remainder shall remain valid and enforceable according to its terms. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this Agreement shall remain in effect. 12.6 Force Majeure Neither party shall be liable to the other for any delay or non-performance of its obligations hereunder other than the obligation of paying the license fees in the event and to the extent that such delay or non-performance is due to an event of Force Majeure (as defined below). If any event of Force Majeure results in a delay or non-performance of a party for a period of three (3) months or longer, then either party shall have the right to terminate this Agreement with immediate effect without any liability (except for the obligations of payment arising prior to the event of Force Majeure) towards the other party. A "Force Majeure" event shall mean an act of God, terrorist attack or other catastrophic event of nature that prevents either party for fulfilling its obligations under this Agreement. 12.7 Notices Any notice given by one party to the other shall be deemed properly given and deemed received if specifically acknowledged by the receiving party in writing or when successfully delivered to the recipient by hand, fax, or special courier during normal business hours on a business day to the addresses specified below. Each communication and document made or delivered by one party to the other party pursuant to this Agreement shall be in the English language or accompanied by a translation thereof. Notices to Digia shall be given to: Digia Finland Ltd Attn: Qt Commercial Valimotie 21 FI-00380 Helsinki Finland Fax: +358 10 313 3700 12.8 Export Control Licensee acknowledges that Qt Commercial Creator may be subject to export control restrictions of various countries. Licensee shall fully comply with all applicable export license restrictions and requirements as well as with all laws and regulations relating to the importation of Qt Commercial Creator and shall procure all necessary governmental authorizations, including without limitation, all necessary licenses, approvals, permissions or consents, where necessary for the re-exportation of Qt Commercial Creator. 12.9 Governing Law and Legal Venue This Agreement shall be construed and interpreted in accordance with the laws of Finland, excluding its choice of law provisions. Any disputes, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be shall be finally settled by arbitration in accordance with the Arbitration Rules of the Central Chamber of Commerce of Finland. The arbitration tribunal shall consist of one (1), or if either Party so requires, of three (3), arbitrators. The award shall be final and binding and enforceable in any court of competent jurisdiction. The arbitration shall be held in Helsinki, Finland and the process shall be conducted in the English language. 12.10 No Implied License There are no implied licenses or other implied rights granted under this Agreement, and all rights, save for those expressly granted hereunder, shall remain with Digia and its licensors. In addition, no licenses or immunities are granted to the combination of Qt Commercial Creator with any other software or hardware not delivered by Digia under this Agreement.