1. PROTOTYPE LICENSE GRANT. Subject to Licensee's compliance with the terms and conditions of this Prototype Agreement, Apple hereby grants to Licensee a nonexclusive, nontransferable right and license to use certain Apple software and documentation identified by the Apple project named:
**** Open Transport Communications Architecture ****
and related Apple products and information (collectively the "Prototype") but only for the limited purposes set forth in this Section 1. Licensee agrees not to use the Prototype for any purpose other than: (i) the testing of the Prototype, and (if applicable) (ii) the development by Licensee of Licensee program(s) which is (are) designed to operate in combination with Apple-labelled products.
2. STORAGE OF THE PROTOTYPE. To the extent that the Prototype consists solely of software and/or documentation, Licensee agrees to restrict access to such Prototype so that only those employees and contractors entitled to view such Prototype under the terms of Section 4 below may see or use the Prototype. Regardless of the nature of the Prototype, however, Licensee agrees to maintain an accurate log of all those given access to the Prototype by the Licensee. Licensee may make only as many copies of Prototype software and documentation as are reasonably necessary to effectuate the permitted uses of the Prototype listed in Section 1. Licensee must preserve any proprietary rights notices on the Prototype and must place all such notices on any copies made.
3. DEFINITION OF CONFIDENTIAL INFORMATION. Licensee agrees that the Prototype and any information concerning the Prototype, including its nature and existence, and any other information disclosed by Apple to Licensee, including but not limited to information learned by Licensee from Apple employees, agents or through inspection of Apple's property, that relates to Apple's products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, or third-party confidential information disclosed to Licensee by Apple, and the existence, terms and conditions of this Prototype Agreement, including the Private Connection Information, will be considered and referred to collectively in this Agreement as "Confidential Information." Confidential Information, however, does not include information that: 1) is now or subsequently becomes generally available to the public through no fault or breach on the part of Licensee; 2) Licensee can demonstrate to have had rightfully in its possession prior to disclosure to Licensee by Apple; 3) is independently developed by Licensee without the use of any Confidential Information; or 4) Licensee rightfully obtains from a third party who has the right to transfer or disclose it. All Confidential Information remains the sole property of Apple, Licensee has no implied licenses or other rights in the Confidential Information not specifically granted in Section 1.
4. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Licensee will not disclose, publish, or disseminate Confidential Information to anyone other than those of its employees and contractors with a demonstrable need to know who have binding, written, confidentiality obligations to Licensee that protect such Confidential Information against unauthorized disclosure. Licensee further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. Licensee agrees to accept Confidential Information for the sole purpose of effecting the permitted uses of the Prototype as set forth in Section 1 above. Licensee agrees not to use Confidential Information otherwise for its own or any third party's benefit, except as permitted under Section 1 above, without the prior written approval of an authorized representative of Apple in each instance.
5. VERIFICATION OF COMPLIANCE. Licensee agrees that authorized Apple representatives with advance notice may inspect the Prototype Site, the Prototype and copies of other Confidential Information and Licensee’s Prototype access log during Licensee's normal business hours in order to verify that Licensee is complying with its obligations under this Prototype Agreement.
6. NO WARRANTY. The Confidential Information, including the Prototype, is provided "AS IS," and without any warranty, whether express or implied, as to their performance, accuracy or completeness.
Licensee expressly acknowledges and agrees that any research or development that it performs with respect to the Prototype is done entirely at Licensee's own risk.
7. EQUITBLE RELIEF. Licensee hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Apple that may be difficult to ascertain. Accordingly, Licensee agrees that Apple will have the right to obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
8. NO EXPORT. Licensee certifies that no Confidential Information, nor any portion thereof, will be exported to any country in violation of the United States Export Administration Act and regulations thereunder.
9. TERM AND TERMINATION. This Prototype Agreement will continue in effect until terminated in accordance with this Section. Licensee may terminate this Prototype Agreement at any time, for any reason, but only by: (1) returning to Apple the Prototype and all extant copies of other Confidential Information on any tangible medium, and (2) returning to Apple a written certification by an authorized representative of Licensee that all tangible copies of the Prototype, and any other Confidential Information have been returned to Apple or completely destroyed and that all electronic memories have been purged of any Confidential Information. Apple may terminate this Prototype Agreement at any time, with or without cause, immediately upon written notice to Licensee. Within 7 days of Licensee’s receipt of Apple’s termination notice, or earlier if requested by Apple, Licensee will return the Prototype and all other Confidential Information as provided in this Section. All obligations of Licensee under this Agreement will continue to bind Licensee until Licensee has fully complied with the foregoing requirements of this Section concerning the return of Apple materials. Following termination of this Prototype Agreement for any reason, the provisions of Sections 3,4,6-13, inclusive will continue to bind the parties.
10. DISCLAIMER OF LIABILITY. APPLE WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, THAT STEM FROM ANY USE OF THE PROTOTYPE AND/OR OTHER CONFIDENTIAL INFORMATION OR APPLE'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
11. NO WAIVER OR ASSIGNMENT. No delay or failure to take action under this Prototype Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Apple, and no single waiver will constitute a continuing or subsequent waiver. This Prototype Agreement will bind Licensee’s successors but may not be assigned, in whole or part, by Licensee without the written approval of an authorized representative of Apple.
12. ENTIRE AGREEMENT. This Prototype Agreement constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. This Prototype Agreement may not be amended except by the written agreement signed by authorized representatives of both parties.
13. GOVERNING LAW. This Prototype Agreement will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. The parties further submit to and waive any objections to personal jurisdiction of and venue in any of the following forums: U.S. District Court for the Northern District of California, California Superior Court for Santa Clara County, Santa Clara County Municipal, court or any other forum in Santa Clara County, for any litigation arising out of this Prototype Agreement. In the event of litigation or arbitration, the prevailing party will be entitled to attorneys fees and costs of suit.
