This license governs the use of proprietary Software Developers’ Kits (each an “SDK”) and documentation made available under license by nPhase, LLC (“nPhase”). The SDK for Wireless Network Services (“WNS”) consists of the WNS Developer’s Guide, Web Services Description Language (WSDL) files, sample code, and HTML documentation containing graphical representations of the XML schemas for the nPhase application programming interfaces (“APIs”). The SDK for Application Services (“AS”) consists of the AS Developer’s Guide, AS “Hello World” .NET demo program, reference samples of XML input for Sensor Configuration Service and the Sensor Data Delivery Service, HTML documentation containing graphical representations of the XML schemas for the nPhase APIs, C# reference service that logs data coming from a service to a file, engineering support sample using SOAP User Interface, and WSDL files. The documentation for Device Performance Services (“DPS”) consists of the Device Framework API Developer and Reference Guides.
Carrier-certified devices or modules needed for basic WNS development and testing and a specific device or module needed for AS feature development and testing may be obtained from the manufacturers thereof. Terms applicable to the use of such devices or modules are as set forth in the documentation accompanying such devices or modules.
This license is a legally binding agreement between nPhase and you (“You” or “you”) and applies to the use of any of the materials contained in an SDK, which constitute confidential and proprietary information of nPhase and are made available only with approval of nPhase, and may be delivered in tangible media or downloaded from a website to which access is granted by nPhase, and only for the purpose of assisting developers in designing, developing, creating, testing or modifying applications (“Authorized Applications”) designed to operate with the nPhase Wireless Network Services, Applications Services, or Device Performance Services (the “Services”), (referred to herein as the “Permitted Use”). If any element of an SDK is installed on any computer owned by a corporation or other legal entity, this Agreement is formed by and between nPhase and such entity, and the individual accepting this license represents and warrants to nPhase that he/she has the authority to bind such entity to the terms and conditions set forth in this license. This license applies to any updates, supplements or support services for this SDK, unless other terms accompany those items, in which case such other terms shall apply.
BY INSTALLING, ACCESSING OR OTHERWISE USING THE SDK, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE, INCLUDING ALL RESTRICTIONS HEREIN, AND CONSENT TO THE TRANSMISSION OF CERTAIN COMPUTER INFORMATION DURING USE AND FOR INTERNET-BASED SERVICES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL, ACCESS OR USE THE SDK OR THE APIs.
1) INSTALLATION AND USE. You may use the SDK on an internal basis only on your devices and reproduce a reasonable number of copies of the SDK, including the documentation, provided that you reproduce only complete copies, including, without limitation, all “read me” files, copyright notices, and other legal notices and terms that nPhase has included in the SDK, and any such copy(ies) shall be only for your use for the Permitted Use and not that of any third party. You agree not to, and not to allow any third party to, reverse engineer, disassemble, decompile or translate any software contained in the SDK which is not provided by nPhase in source code format, or otherwise attempt to derive the source code thereof.
2) RESTRICTIONS. You may not charge users of an Authorized Application any fee to access or use the Services from within your Authorized Application. You may not license, transfer, or assign any rights or grant any access to the SDK to any third party, disclose an SDK, or any part thereof, to any third party, or grant any access to the Services.
3) DISTRIBUTABLE CODE. Unless otherwise provided, if the SDK contains or permits access to other nPhase programs, this license applies to your use of those programs. The SDK contains code that you are permitted to include in Authorized Applications subject to compliance with the terms below.
a) Right to Use and Distribute. The sample code, demo program, WSDL files, and nPhase APIs are “Distributable Code” and are subject to the following:
1) Sample Code. You may modify, copy, and internally distribute the source code form of code marked as “reference implementation” in the SDK.
2) Redistribution. You may permit distributors of Authorized Applications to copy and distribute the Distributable Code as part of those applications.
b) Distribution Requirements. For any Distributable Code distributed as permitted herein, you must require distributors and external end users to agree to terms that protect nPhase at least as much as this license and to indemnify, defend, and hold harmless nPhase and Verizon Wireless from any claims, including attorneys’ fees, related to the distribution or use of Authorized Applications.
c) Distribution Restrictions. You may not alter any copyright, trademark or patent notice in the Distributable Code; use nPhase’s trademarks in the name or description of any application or in a way that suggests such application is a product or service of, or is endorsed by, nPhase; include Distributable Code in malicious, deceptive or unlawful applications; or modify, distribute or convey any Distributable Code so that the Distributable Code or any application to which it links, or of which it is a part, becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of license, use, modification, distribution or conveyance, that the code be disclosed or distributed in source code form, that others have the right to modify or create derivative works of it, and/or it becomes redistributable at no charge.
4) INTERNET-BASED SERVICES. The Services may rely on internet-based communications which may change or be cancelled at any time. You may not use this SDK or the Services in any way that could harm the Services or impair anyone else’s use of it. You may not use the SDK or the Services to attempt to gain unauthorized access to any service, data, account or network by any means. Some SDK features, such as the APIs, connect to nPhase computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. By using this SDK, you consent to the transmission of this information.
5) EXPORT RESTRICTIONS. You acknowledge that all software, source code and technology (collectively, “Products”) obtained from nPhase are subject to the US government export control and economic sanctions laws. You assure that you will not directly or indirectly export, re-export, transfer or release (collectively, “Export”) any Products or direct product thereof to any destination, person, entity or end use prohibited or restricted under US laws without prior US government authorization to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan and Syria, but any amendments to the listong of countries under a US embargo or sanction shall apply. You shall not Export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China. You further acknowledge that other countries may have trade laws pertaining to the Export, import, use or distribution of Products, and that compliance with the same is your responsibility. This Section shall survive any expiration or termination of this license.
6) SUPPORT. nPhase is not obligated to provide any technical or other support (“Support Services”) for the SDK or Services to you. However, if nPhase provides any Support Services, your use of such Support Services will be governed by then-current nPhase policies. With respect to any technical or other information you provide to nPhase in connection with Support Services, you agree that nPhase has an unrestricted right to use such information for its business purposes, including for product support and development.
7) TERMINATION. nPhase may, in its sole discretion, terminate or suspend access to the APIs and Services to you or any end user at any time in the event you breach any of the terms of this license or if nPhase becomes aware of any abuse or unauthorized use, disclosure or copying of the SDK or the Services by you or such end user. In such event, you will delete the SDK from all of your systems and destroy any tangible copies thereof, and provide an officer’s certificate of compliance. You acknowledge that termination and/or monetary damages may not be a sufficient remedy for a breach of this license and that nPhase will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach. This Section and Sections 8 through 14, inclusive, will survive termination of this license or any discontinuation of the offering of the SDK, APIs or Services, along with any other provisions that would reasonably be deemed to survive such events.
8) INTELLECTUAL PROPERTY. Except for the rights expressly granted under this license, nPhase and its suppliers retain all right, title and interest in and to the SDK, APIs, Services, and all intellectual property rights therein. No other rights are granted to you, including, but not limited to, any rights under patents, trademarks, copyrights or trade secrets. You are not authorized to alter, modify, copy, edit, format, create derivative works of, or otherwise use any materials, content or technology provided under this license except as explicitly provided in this license or approved in advance in writing by nPhase.
9) INDEMNIFICATION. You agree to indemnify, defend and hold harmless nPhase, its affiliates, its suppliers, and Verizon Wireless, and their respective directors, officers, employees and agents from and against all losses, claims, liabilities, damages or fees, including attorneys’ fees (“Losses”) arising out of, resulting from, or relating to (i) any use, reproduction or distribution of the SDK or any part thereof, as modified or integrated by you, or any of your development, testing or other activities utilizing the SDK, which causes an infringement of any intellectual property right of any third party, (ii) the download, distribution, installation, storage, execution, use or transfer by any person or entity of any software, products, documentation, content, materials or derivative works provided by you, and/or (iii) any breach of this license by you, including, without limitation, any misuse or unauthorized disclosure or copying of the SDK or the Services.
10) CONFIDENTIALITY. The SDK and all related information are confidential and proprietary to nPhase. Except as expressly permitted in this license, you agree not to disclose or permit the disclosure of the SDK or any part thereof to any third party without the prior written consent of nPhase.
11) MODIFICATIONS; NOTICES. nPhase reserves the right to modify the SDK, APIs or Services at any time at its sole discretion. If nPhase amends this license or any terms thereof, nPhase will notify you. If you do not agree to any such changes, you must stop using the SDK, Services and APIs immediately. If you do not stop using the SDK, Services or APIs, your use thereof will continue under the license as amended. nPhase may provide notices, at nPhase's option, by posting on any portion of the nPhase website or by electronic mail to any e-mail address you have provided to nPhase.
12) ENTIRE AGREEMENT. If you signed a NonDisclosure Agreement with Cellco Partnership d/b/a Verizon Wireless (an “NDA”), that NDA, as it may be amended from time to time, and this license constitute the entire agreement with respect to the SDK, the Services and the APIs, and your rights to access and use the same. Any conflict between such NDA and this license shall be resolved by reference to and controlled by this license with respect to use of the SDK and the Services.
13) APPLICABLE LAW AND LEGAL EFFECT. California state law governs the interpretation of this license and applies to claims for breach of it, regardless of conflict of laws principles. This agreement describes certain legal rights. You may have other rights under your local laws, in which case this license does not change your rights under such laws if not legally permissible.
14) DISCLAIMER OF WARRANTY. THE SDK IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. nPHASE GIVES NO EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, OR CONDITIONS AND DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. nPHASE DOES NOT WARRANT THAT THE SDK OR THE SERVICES WILL MEET YOUR NEEDS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THEREIN WILL BE CORRECTED. FURTHER, nPHASE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF THE SDK OR THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY nPHASE OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.
15) LIMITATION AND EXCLUSION OF REMEDIES AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL nPHASE, ITS AFFILIATES, VERIZON WIRELESS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND SIMILAR LOSSES) ARISING OUT OF OR IN CONNECTION WITH THE SDK OR THE SERVICES, EVEN IF nPHASE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY OR MAY BE LIMITED. nPHASE AND VERIZON WIRELESS HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY YOU UNDER THIS LICENSE. IN NO EVENT WILL nPHASE’S OR VERIZON WIRELESS’ TOTAL AGGREGATE LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION, (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNIFICATION OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS (US$100.00).
16) GOVERNMENT END USERS. If you are acting on behalf of an agency or instrumentality of the US government, the SDK is “commercial computer software” and “commercial computer software documentation,” as applicable, developed exclusively at private expense by nPhase; accordingly, pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure thereof is governed by the terms of this license.
17) Publicity. Notwithstanding the provisions of any confidentiality or non-disclosure agreement, nPhase may include your name, logo and other information about you on nPhase’s website and in presentations and marketing collateral to identify you as a developer of Authorized Applications. Except for the foregoing, no use of your name, logo or trademarks shall be used by nPhase without your consent. If you wish to use nPhase’s name or logo on any materials relating to an Authorized Application developed by you for use with the Services, please contact nPhase marketing at info@nphase.com or 855-M2M-LINK for additional information, including usage guidelines, and approvals.