Kyocera 7135 smartphone

1. LICENSE GRANTS.

1.1 License Grant for the Software Development Kit ("SDK"). Subject to the terms and conditions set forth herein, Kyocera Wireless Corp. ("Kyocera") hereby grants you (as an individual or single entity) ("Developer") the following non-exclusive, non-transferable, royalty-free license rights:

You may use the SDK which consists of the Application Program Interface (API) manual, header files, and sample code, to create, modify, copy and distribute end-user software ("Application Programs") for the sole purpose of the Kyocera Smartphone. The SDK is licensed for use only on the Windows 95/98/2000/NT or Mac OS platforms. Developer may use, modify and distribute, in object code form, the sample source code included with the SDK. Such use must be in conjunction with and as part of the Application Programs and the Application Programs must add significant value to the sample code.

1.2 Marketing Obligations. Developer may employ commercially reasonable efforts to market its Application Programs. Developer shall provide Kyocera with, and obtain approval in writing for, all content of any press releases mentioning Kyocera in advance of such release. Developer shall be solely responsible for creating, managing, editing, reviewing and otherwise controlling the content of all advertisements and promotional materials which relate to the SDK and any Application Programs. Developer agrees and acknowledges that Kyocera shall have the right to disapprove promotional materials that, in Kyocera's business judgment, do not represent suitable quality advertisements, or that reflect unfavorably on Kyocera. Developer shall not utilize any promotional materials, that make use of any Kyocera names or trademarks, not expressly approved by Kyocera in writing. Upon request by Kyocera, in writing, Developer shall immediately remove from Developer's service any advertisements/promotions mentioning Kyocera that Kyocera finds unsuitable.

1.3 New Releases. If Kyocera makes a new release (other than an "Update" release which is designated by Kyocera as a change in the hundredths digit [x.x (x)]) of any component of the SDK available, then: i) Developer shall use reasonable efforts to cease reproduction and distribution of the older version of the SDK component and, ii) shall promptly commence reproduction and distribution of the new release of the SDK component with Developer's Application Programs, provided Developer may deplete its existing inventory of Developer's Application Program containing a prior version of the SDK.

2. PROPRIETARY RIGHTS

2.1 Kyocera Ownership. Developer acknowledges and agrees not to contest that Kyocera is the sole and exclusive owner of all rights, title and interest, including copyrights, trademarks, patents, trade secrets, sample code, and any components thereof, and other intellectual property rights to all of the SDK and its associated documentation. Except for the rights expressly enumerated herein, Developer is not granted any right to patents, copyrights, trade secrets, trade names, trademarks (whether or not registered), or any other rights or licenses with respect to the SDK.

Developer shall reproduce and include a copy of its end-user License Agreement, Kyocera's copyright and other proprietary notices and disclaimer of warranty, as provided in Paragraph 5 ("Warranties"), with any of the SDK's derivative software and associated documentation which Developer uses or distributes in conjunction with and as part of its Application Programs as permitted herein.

2.2 Proprietary Notices. In order to protect the copyright and other ownership interests of Kyocera and its licensors, Developer agrees that, as a condition of its rights hereunder, (i) all copyright and other proprietary notices ("Notices") which are embedded in the SDK and its associated documentation shall remain as embedded, in the same manner as embedded by Kyocera, in each copy of the SDK, (ii) all Notices which appear on such materials shall appear, in the same manner on each tangible copy or any portion thereof or documentation therefore, and iii) Developer shall insure that all Notices which appear on such materials shall appear, in the same manner, on each tangible copy or portion thereof or documentation therefore.

2.3 Trade Secrets. Developer acknowledges and agrees that those techniques, algorithms, and processes contained in the SDK which have been developed, acquired, or licensed by Kyocera, or any modification or extraction thereof, constitute trade secrets of Kyocera or its licensors, and Developer agrees that they will be used by Developer only in accordance with the terms of this Agreement. Developer shall, by all necessary means, protect the proprietary rights of Kyocera in the SDK and the Application Programs, including without limitation, securing, and/or maintaining employee confidentiality agreements, security access to the SDK, password protection, numbered copies, and all legal and equitable remedies available. Developer shall not disseminate any portion or modified portion of the SDK or the Application Programs, or any computer software or hardware embodying or based upon the foregoing, to any third party for any reason whatsoever, except as expressly provided for in this Agreement. Such obligations shall not apply to information that (i) has entered the public domain through no effort or action by Developer; (ii) was independently developed by Developer; (iii) was rightfully disclosed to Developer without confidentiality restrictions by a third party; and (iv) is required to be disclosed by governmental law, regulation or order.

2.4 Unauthorized Distribution or Copying. Developer acknowledges and agrees that it is prohibited from copying, distributing, duplicating, or otherwise reproducing all or any part or translated part of the SDK, except as provided in this Agreement. Developer further agrees that (i) copying, distributing, duplicating, or otherwise reproducing all or any part or translated part of the SDK, except as expressly provided for in this Agreement or (ii) failing to protect the SDK, shall be considered a material breach of this Agreement.

2.5 Changes to the SDK. All right title and interest in the SDK including, but not limited to, any designs, modifications, or other changes made by Developer, shall remain the property of Kyocera. Any trademarks, copyrights or other intellectual property rights associated therewith are and shall remain the property of Kyocera (or its licensors), subject to the license granted in Section 1.

2.6 Derivative Rights. Kyocera shall have derivative rights to any interface code written for or used with the SDK by Developer.

2.7 Proprietary Information. Developer shall not and shall not allow any third party to modify, alter, attempt to disassemble, decompile, or otherwise reverse engineer the SDK except and only to the extent authorized by this Agreement. When reverse engineered and decompiled, the SDK contains the trade secrets and proprietary and confidential information of Kyocera.

2.8 Trademarks.

2.8.1 Trademark License. Kyocera hereby grants to Developer a non-exclusive, non-transferable, limited license (without the right to sublicense) to use the Kyocera trademarks in advertising and printed materials for the marketing and promotion of the SDK and Application Programs; provided that Developer (i) does not effectively create a unitary composite mark without the prior written approval of Kyocera by either using any other trademark or service mark in close proximity to any of the Kyocera trademarks or by combining any other mark with a Kyocera trademark, and (ii) displays symbols, legends and notices clearly and sufficiently indicating the trademark status and Kyocera ownership of the Kyocera trademark in accordance with applicable trademark law and practice and, (iii) obtains Kyocera's prior written approval of any such use of the Kyocera trademarks.

2.8.2 Ownership of Trademarks. Developer acknowledges the ownership of the Kyocera trademarks in Kyocera. Developer shall not do anything which is inconsistent with such ownership. Developer shall use commercially reasonable efforts to preserve Kyocera's rights in the Kyocera trademarks. All use of the Kyocera trademarks by Developer shall inure to the benefit and be on behalf of Kyocera. Developer acknowledges that Developer's utilization of the Kyocera trademarks will not create in it, nor will it represent it has, any right title, or interest in or to such Kyocera trademarks other than the licenses expressly granted herein. Developer shall not do anything to contest or impair the trademark rights of Kyocera.

3. TERM OF THE AGREEMENT.

The initial term of this Agreement is one year from the date upon which you execute this Agreement pursuant to Section 11 (the "Effective Date"), unless terminated by either party as provided for in this Agreement. Thereafter, this Agreement shall automatically renew for successive one (1) year periods unless (i) either party gives the other party thirty (30) days notice of its intent not to renew, or (ii) the Agreement has been terminated earlier by either party as provided in Section 7.

4. EXPENSES.

4.1 Costs Incurred. Developer is solely responsible for costs and expenses incurred in connection with the distribution of the SDK and Application Programs. Kyocera shall have no obligation to provide maintenance, support, upgrades or new releases to Developer or to any distributee of the SDK or any Application Program.

4.2 Taxes. Developer shall pay and indemnify and hold Kyocera harmless from any sales, use, excise, import, or export, value added or similar tax or duty relating to the licensing of the SDK and Application Programs, including penalties and interest, as well as any costs, including attorneys' fees, associated with the collection or withholding thereof.

5. WARRANTIES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KYOCERA EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SDK. THE SDK AND ITS ASSOCIATED DOCUMENTATION ARE PROVIDED ON AN "AS IS" BASIS ONLY AND WITHOUT ANY WARRANTY OF ANY KIND. THE FOREGOING STATES KYOCERA'S SOLE AND EXCLUSIVE WARRANTY TO DEVELOPER CONCERNING THE "SDK" AND ITS ASSOCIATED DOCUMENTATION AND KYOCERA'S SOLE AND EXCLUSIVE OBLIGATION TO DEVELOPER FOR BREACH OF WARRANTY. KYOCERA MAKES NO WARRANTIES EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED.

KYOCERA DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SDK IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SDK AND ANY APPLICATION PROGRAMS IS ASSUMED BY DEVELOPER AND ITS DISTRIBUTEES. SHOULD THE PROGRAM PROVE DEFECTIVE, DEVELOPER AND ITS DISTRIBUTEES ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

6. INDEMNITY.

Developer, at its sole expense, shall indemnify, defend and hold harmless Kyocera from and against any and all claims, causes and suits brought by any person or party arising in any way connected with Developer's Application Programs, the use of or inability to use the Application Programs, or any warranty, guarantee or representation made by Developer, including its agents, representatives, and distributors to any person or persons, including Developer's end-users.

Developer, at its own expense, shall defend, indemnify and hold harmless Kyocera against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, which Kyocera may incur resulting from any claim that any Developer's Application Programs, Developer's trademarks or service content or other omissions or misrepresentations infringe any copyrights, patents or trademarks, provided that Kyocera gives Developer prompt written notice of any such claim, tenders the defense of any such claim to Developer and provides Developer with full cooperation for the defense of the same.

7. TERMINATION.

7.1 Termination for Cause. Either party shall have the right to terminate this Agreement on thirty (30) days prior written notice to the other party in the event of a material breach by the other party of its obligations as specified in this Agreement.

7.2 Obligations on Cancellation, Termination or Expiration. Upon termination of this Agreement for any reason, Developer's rights under Section 1 shall terminate immediately. Developer shall destroy all full or partial copies of the SDK and Application Programs in Developers possession or under its control, except that Developer may keep two (2) copies for use in providing support and archival purposes only. If this Agreement is terminated for cause, Developer shall destroy all full or partial copies of the SDK and Application Programs in Developer's possession or under its control within ten (10) days following termination date.

7.3 Sublicenses. Sublicenses validly granted prior to expiration or termination of this Agreement shall survive termination or expiration of this Agreement.

8. LIMITATION OF LIABILITY.

NEITHER KYOCERA NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS SHALL BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, ECONOMIC, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANY NATURE (INCLUDING, BUT NOT LIMITED TO LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, DAMAGE TO PROPERTY, LOSS OF USE, OR ANY CLAIMS OF THOSE NOT A PARTY TO THIS AGREEMENT), HOWEVER CAUSED AND REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT ON TORT, CONTRACT, NEGLIGENCE, OR OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF KYOCERA HAS BEEN ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

9. EXPORT RESTRICTIONS.

Developer shall comply with all applicable laws and regulations in effect in the country, state or province in which it distributes the SDK and Application Programs and with the material provisions of all U.S. laws and regulations which apply to the distribution of the SDK and Application Programs, including, but not limited to the U.S. Export Administration Regulations ("EAR"), as such laws and regulations may be amended from time-to-time. Developer agrees that neither it nor its customers intend to or will, directly or indirectly, transport the SDK or any derivative products to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce or other government entity with jurisdiction of such transport.

10. GENERAL.

10.1 Controlling Law. This Agreement shall be interpreted, construed, governed and enforced according to the laws of the State of California. Any action to construe or enforce this Agreement shall be brought only in the courts of competent jurisdiction in San Diego County, California. Developer hereby stipulates that the Superior Court of the State of California for the County of San Diego or the United States District Court for the Southern District of California shall have in personam jurisdiction and venue over Developer for the purpose of litigating any dispute or controversy arising out of or related to this Agreement.

10.2 Notices. Address all correspondence regarding this license agreement to:

Kyocera Wireless Corp.
10300 Campus Point Drive
San Diego, CA 92121
Attention: Legal Department

10.3 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

10.4 Non-Waiver. No waiver of any of the terms and conditions of any provision of this Agreement, or the failure of Kyocera strictly to enforce any such term or condition on one or more occasions, shall constitute waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

10.5 Survival. Sections 2 ("Proprietary Rights"), 4.2 ("Taxes"), 5 ("Warranties"), 6 ("Indemnity"), 7 ("Termination"), 8 ("Limitation of Liability") and 10 ("General") of this Agreement as well as any validly granted end-user license shall survive cancellation of termination of this Agreement.

10.6 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by Developer will cause Kyocera irreparable damages for which recovery of money damages would be inadequate and that Kyocera may seek timely injunctive relief to protect Kyocera's rights under this Agreement in addition to any and all remedies at law.

10.7 Assignment. Neither this Agreement nor any rights of Developer hereunder may be assigned by Developer in whole or in part without the prior written approval of Kyocera, which shall not be unreasonably withheld. For the purposes of this paragraph, a change in the persons or entities that control fifty percent (50%) or more of Developer shall be considered an assignment of Developer's rights.

10.8 Attorneys' Fees. In the event of any litigation concerning any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable attorneys' fees and costs incurred therein. The "prevailing party" means the party determined by the court to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgment is rendered. Further, in the event of any default by a party under this Agreement, such defaulting party shall pay all the expenses and attorneys' fees incurred by the other party in connection with such default, whether or not any litigation is commenced.

10.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supercedes all prior agreements, understandings and representations between Developer and Kyocera. This Agreement may only be changed by mutual agreement of the authorized representatives of the parties in writing.

10.10 Severability. If any provisions of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect.

10.11 Section Headings. The section and subsection headings used herein are for reference only, and shall not enter into the interpretation hereof.

11. EXECUTION OF THIS AGREEMENT.

Your completion of the registration form and "click" of the "I Accept" button is a symbol of your signature that you accept and agree to be bound by the terms and conditions of this Agreement. Do not proceed if you are not authorized to bind the Developer and/or you do not agree to the terms and conditions of this Agreement.