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Symbian_Platform_Capabilities_active_use_Agr_100202

By Alma Bennett,2014-04-22 22:09
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Symbian_Platform_Capabilities_active_use_Agr_100202

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    C O N F I D EN T I A L

    SYMBIAN PLATFORM CAPABILITY AGREEMENT

This Symbian platform capability agreement (“Agreement”) is entered into and made between:

    (1) NOKIA CORPORATION, represented through its Forum Nokia business group, of Keilalahdentie 4,

    FIN-02150 Espoo, Finland, including its Affiliates (“Nokia”) and

(2) (insert company name) whose principal place of business is at (insert address)(“Company”)

Nokia and Company are hereinafter jointly referred to as the “Parties” and individually a “Party”.

THEREFORE THE PARTIES AGREE AS FOLLOWS:

    WHEREAS A platform security architecture has been introduced in Symbian OS v9.0 and Nokia has

    implemented this into its Symbian OS based devices; and

    WHEREAS The platform security architecture is based on capabilities that are given to software

    applications in the application certifying process. Because of the Symbian platform’s current

    design, the Company Products (defined below) need to be given certain capabilities to

    function properly with the Nokia Products (defined below); and

    WHEREAS The capabilities can be used in a manner that may materially adversely affect the Nokia

    Products and cause severe monetary and non-monetary damage and liabilities to Nokia and its

    Affiliates and the rights must therefore be used with utmost caution and diligence.

DEFINITIONS

“Affiliates” shall mean an entity

    (i) which is directly or indirectly controlling a Party

    (ii) which is under the same direct or indirect ownership or control as a Party, or

    (iii) which is directly or indirectly owned or controlled by a 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 votes in such entity and/or is able to direct its affairs and/or

    to control the composition of its board of directors or equivalent body.

“Capabilities”

     shall mean AllFiles, DRM, and/or TCB.

“Company Products”

     shall mean Company’s (insert the name of the application) application versions intended for

    use with any Nokia Products.

“Confidential Information”

    shall mean all material and information in any form received from Nokia or its Affiliates or

    their business partners including, but not limited to, know-how and/or information on any

    technical or commercial matters, business operations, facilities, products, techniques and

    processes. For the avoidance of any doubt, Capabilities shall be considered as Confidential

    Information.

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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    C O N F I D EN T I A L

     “Nokia Products”

     shall mean Nokia mobile device(s) based on the Symbian OS.

“Symbian”

     shall mean Symbian Foundation Limited.

1. SCOPE OF AGREEMENT

    1.1 This Agreement shall govern Company’s use of the Capabilities in relation to Company Products

    (for the Nokia Products as defined in the definitions).

1.2 Nokia’s approval, testing, acceptance, signing or knowledge of Company Products, if any, does not

    relieve Company from any of its liabilities under this Agreement and in relation to the Company

    Products and Nokia assumes no liability for the same.

    1.3 This Agreement is a prerequisite for Nokia making any Capabilities available to Company, but for

    the avoidance of doubt, does not place any obligation on Nokia to make them available.

    1.4 Company’s conformance with this Agreement is a prerequisite for Nokia providing Company with

    a Symbian Signed service for the signing of the Company Products.

2. USE OF CAPABILITIES

    2.1 Company shall use the Capabilities diligently and only as expressly allowed in this Agreement.

    Company’s right to use the Capabilities is requiring the Company Products to be equipped with the

    Capabilities to function properly with the Nokia Products.

    2.2 Company shall use the Capabilities to enable the Company Products to interoperate with the

    Symbian OS and the Nokia Products. Company shall only posses the Capabilities to enable correct

    communication between the relevant parts of the Nokia Products and the Company Products.

    2.3 Company shall not use the Capabilities in a manner that would cause errors or materially adversely

    affect the Nokia Products or any data or software used in connection with the Company Products.

    Company represents and warrants that Company Products using the Capabilities do not disturb,

    copy, delete or read the contents or the functioning of the folders

     \private\101F51F2;

     \private\102728AA; and

     \private\101FFB90

     included in the manufacturer's device, or open OMA DRM 2.0 content files as defined in the OMA

    DRM 2.0 specification.

     Company’s use of Capabilities is further restricted to the purposes defined in Appendix 1.

    2.4 Company shall ensure that the Company Products are robust and do not contain security

    vulnerabilities which would allow third parties to access or use any of the Capabilities via the

    Company Products and that no malware, viruses, worms, Trojan horses, time bombs or any other

    malicious code is introduced into the Company Products during the activities Company performs

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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    C O N F I D EN T I A L

    using the Capabilities. Company’s failure to meet any of these requirements is defined as “Security

    Issue”.

2.5 To minimize the risk of unauthorized distribution of digital rights management (“DRM”) protected

    data, Company agrees that it will not use the content access framework and that it will ensure that

    no DRM protected data stored in files accessed by any components of the Company Products is

    made available in an unprotected form.

    2.6 Company shall ensure that the Company Products adhere to the security, robustness and

    compliance rules required by (i) the Content Management License Administrator (“CMLA”) for

    devices that implement Open Mobile Alliance DRM 2.0 technology and (ii) Microsoft Corporation

    for devices that implement the Windows Media Digital Rights Management (“WMDRM”)

    technology, including any updates to these CMLA and WMDRM rules, collectively “Rules”, to the

    extent the Rules are applicable to the Company Products. When applicable, Company shall use the

    Rules when defining the required security and robustness levels.

    2.7 Company’s shall ensure that its use of the Capabilities does not result in the Nokia Products failing

    to comply with the Rules, but only to the extent the Company is of the effect of its use on the

    Nokia Products or should be aware of this effect taking into account that Company is an expert on

    mobile security-software and has experience in developing software for Nokia Products as well as

    other relevant circumstances.

    2.8 If the Company Products do not comply with the Rules or a Security Issue emerges, Company shall

    urgently prepare and make available updates of the Company Products to ensure compliance with

    the Rules and rectify the Security Issue. Company shall also provide Nokia with any support Nokia

    may reasonably need to minimise the effects of the non-conformance or Security Issue. Nokia shall

    provide Company with reasonable support as Company may reasonably request to be able to fulfill

    its obligations under this Clause.

    2.9 If Nokia suspects that as a result of Company’s use of the Capabilities, the Company Products or

    the combination of the Company Products with the Nokia Products any Nokia Products do not or

    will not meet the Rules, Company shall cooperate with Nokia to analyse the situations and to

    rectify any non-compliance as Nokia may reasonably request.

    2.10 Company shall maintain and document industry leading testing processes and security measures

    with respect to its use of the Capabilities. Upon written request, Company shall report Company’s

    use of the Capabilities to Nokia.testing@nokia.com in plain or HTML e-mail format. The report

    shall include at least: which of the Capabilities Company has used for which files and for which

    Nokia Products. Company shall notify Nokia without delay when it has ceased using the

    Capabilities.

    2.11 Company shall allow Nokia to audit the testing processes and security measures agreed above in

    Clause 2.4 including also the audit of any software and/or updates self-certified with the

    Capabilities. At Company’s request, Nokia will use an independent audit firm to conduct the audit

    at Nokia’s expense.

    2.12 Any breach of this Clause 2 entitles Nokia to terminate this Agreement immediately by a written

    notice to Company and to receive damages covering in full any damage, cost and/or loss to Nokia

    and/or its Affiliates arising from the breach.

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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    C O N F I D EN T I A L

    2.13 In no event may Company copy, export, re-export, sublicense, rent, loan, lease, disclose, sell,

    market, commercialise, re-license, otherwise transfer to any third party (including Company’s

    Affiliates) or use or permit use of the Capabilities in any manner inconsistent with or not expressly

    permitted in this Agreement. Company shall not (or attempt to) itself or permit others to decompile,

    reverse engineer, or disassemble, derive or determine the source code (including the logic,

    protocols or specifications incorporated or implemented therein) of the Nokia Products or enable

    any disabled logic, protocols or specifications incorporated or implemented in the Capabilities.

    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 Nokia and its licensors. Also, any and

    all licenses with respect to Nokia or third party patents are specifically excluded from the scope of

    this Agreement, and those licenses need to be acquired separately from Nokia or the respective

    right holders, as the case may be.

3. SIGNING PROCESS

    3.1 Company will deliver the Company Products it wishes to be signed to Nokia according to the

    process specified by Nokia. Prior to this, Company shall test the Company Products based on a

    criteria set out by Symbian Foundation Limited or Nokia available from time to time and ensure the

    Capabilities function correctly in the Company Products.

    3.2 Nokia may at its option sign the Company Products with the Capabilities or arrange them to be

    signed.

    3.3 Nokia’s testing and/or signing shall not relieve Company of any of its liabilities under this

    Agreement or otherwise for the Company Products and Nokia assumes no liability whatsoever in

    relation to the Company Products.

4. CONFIDENTIALITY

    4.1 Company shall keep the Confidential Information strictly confidential and shall not disclose it to any

    third parties (including Company’s Affiliates) without the prior written consent of Nokia. Company

    shall have the right to: (i) use Confidential Information only for the purpose specified in Section 2;

    and (ii) copy such Confidential Information only to the extent necessary for the purposes of this

    Agreement. Other than stated in this Clause 4, Company shall at all times maintain the Confidential

    Information together with any copies at its premises or otherwise in secure fashion and agrees to

    take all reasonable measures and actions to protect such Confidential Information from theft,

    unauthorized copying, reproduction, distribution, disclosure, dissemination and use, which measures

    shall be no less stringent than the measures employed by Company at that time to secure and protect

    its own confidential and proprietary information of a similar nature. Company shall restrict the

    access to the Confidential Information to only those of its personnel with a need to know such

    Confidential Information for carrying out the purpose of this Agreement. Upon its discovery of any

    unauthorized possession, use or disclosure of the Confidential Information attributable to Company,

    Company shall promptly notify Nokia of the same and shall cooperate with Nokia in every

    reasonable effort to regain possession and to prevent the further unauthorized use of the Confidential

    Information.

    4.2 Confidentiality obligation shall, however, not be applied to Confidential Information which:

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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    C O N F I D EN T I A L

    (i) is in the public domain at the time of disclosure or later becomes part of the public domain

    through no fault of Company; or

    (ii) was known to the Company prior to disclosure by Nokia as proven by the written records of

    Company; or

    (iii) is disclosed to Company by a third party who did not obtain such information, directly or

    indirectly, from Nokia; or

    (iv) was independently developed by personnel of Company having no access to the

    Confidential Information as proven by the written records of Company.

    4.3 This Clause 4 shall bind Company for a period of five (5) years from the date of disclosure of any

    Confidential Information regardless of termination, expiry or fulfillment of this Agreement.

5 APPLICABLE LAW AND DISPUTE SETTLEMENT

    5.1 The substantive law of Finland shall apply. Any disputes arising out of or relating to this

    Agreement shall be resolved in arbitration under the Rules of Arbitration of the Chamber of

    Commerce of Helsinki, Finland. The arbitration tribunal shall consist of one (1), or if either Party

    so require, 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. In addition, Nokia may at its option seek interim relief

    in any court in which the underlying action giving rise to the need for the relief arose and Company

    consents to the jurisdiction of the court for this purpose.

    5.2 Any dispute, controversy or claim arising out of or relating to this Agreement including but not

    limited to the possibility or existence of the proceedings, the proceedings themselves, oral

    statements made during the course of the proceedings, documents and other information submitted

    by the Parties or prepared by the court or the arbitrator(s), and the final award shall be confidential.

6 TERM AND TERMINATION

    6.1 This Agreement shall be valid from the date both Parties have duly signed it for a period of

    eighteen (18) months.

    6.2 Each Party may terminate this Agreement by a written notice if the other Party substantially fails to

    comply with any of its obligations under this Agreement and does not remedy the failure of

    performance within fifteen (15) days after it has been notified in writing of the failure.

    6.3 Each Party may 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 the 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.

    6.4 The following clauses shall survive any termination or expiry of the Agreement 2.8, 2.9, 2.12, 2.13,

    4, 5.

    IN WITNESS WHEREOF this Agreement has been duly signed and executed by the Parties in two original copies:

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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    C O N F I D EN T I A L

NOKIA CORPORATION

By: By:

Name: Name:

Title: Title:

Date: Date:

COMPANY

By: By:

Name: Name:

Title: Title:

Date: Date:

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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    C O N F I D EN T I A L

    APPENDIX 1: Capability request form

Application Name

Please list the APIs used that need these capabilities where applicable. Please also specify the

    functionality in your application which makes use of these APIs.

Capability APIs used Functionality in Application

AllFiles

DRM

TCB

    ? Nokia Corporation

    Proprietary and Confidential

    61853

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