Developer Non-Production License Agreement

 

MobileIron, Inc.

Developer Non-Production License Agreement

2015-06-10

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING OR ACCESSING THE MI PRODUCT(S). THESE TERMS AND CONDITIONS GOVERN YOUR RIGHTS TO MI PRODUCT(S).

IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR TO AN ENTITY USING OR ACCESSING THE MI PRODUCT(S), YOUR USE OR ACCESS OF ANY MI PRODUCT(S) WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY (“DEVELOPER”), AND YOU AND DEVELOPER REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND DEVELOPER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

MOBILEIRON, INC., A DELAWARE CORPORATION (“MOBILEIRON” or “MI”), IS WILLING TO GRANT DEVELOPER USE OF AND/OR ACCESS TO MI PRODUCT(S) ONLY UPON THE CONDITION THAT DEVELOPER ACCEPTS AND IS BOUND BY ALL THE TERMS CONTAINED HEREIN. IF YOU OR DEVELOPER DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, THEN NEITHER YOU NOR DEVELOPER ARE AUTHORIZED TO USE OR ACCESS THE MI PRODUCT(S).

IF YOU OR DEVELOPER ARE DEEMED TO HAVE ORDERED A SERVICE OR PRODUCT FROM MOBILEIRON, MOBILEIRON’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS (SPECIFICALLY INCLUDING ANY NEW OR DIFFERENT TERMS CONTAINED IN DEVELOPER’S PURCHASE ORDER (IF ANY)); IF THESE TERMS ARE CONSIDERED AN OFFER BY DEVELOPER, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

NOTWITHSTANDING ANY OF THE FOREGOING, IF DEVELOPER AND MOBILEIRON HAVE EXECUTED A WRITTEN AGREEMENT UNDER WHICH MOBILEIRON MAKES AVAILABLE TO MI PRODUCT(S) ("SIGNED DEVELOPER NON-PRODUCTION LICENSE AGREEMENT") THEN THE TERMS OF THE SIGNED DEVELOPER NON-PRODUCTION LICENSE AGREEMENT (AND NOT THIS AGREEMENT) SHALL GOVERN AND CONTROL WITH RESPECT TO SUCH SPECIFIC MI PRODUCT(S) MADE AVAILABLE THEREUNDER.

MobileIron makes available to developers non-production licenses to certain MI products to assist in developing applications, devices, products, cloud services and/or solutions that can be managed by MobileIron’s enterprise mobility management solutions. Developer desires to have such a license, and MobileIron desires to provide such license, all on the terms and conditions set forth below.

MI AND DEVELOPER AGREE AS FOLLOWS:

This Developer Non-Production License Agreement is entered into as of the earlier of the date that Developer accepts this Agreement or first downloads or otherwise accesses the MI Product(s) (the “Effective Date”).

1. DEFINITIONS. The following terms have the following meanings:

Developer Representative” means any employee or contractor of Developer to whom Developer provides a copy of any Software (or any component thereof) for use on behalf of and for the benefit of Developer and for the Non-Production Purposes, subject to all the terms and conditions of this Agreement. No MobileIron Competitor (or any employee or contractor thereof) shall be deemed a Developer Representative.

Developer Data” means any data, information, applications, or other electronic items originated by Developer that Developer submits to any MI Product(s).

"Documentation" means any documentation provided by MI to Developer in connection with this Agreement. Documentation may be delivered or made available on-line, electronically or otherwise.

MI Competitor”means Good Technology Corporation, AirWatch by VMWare, Maas360 by IBM Corporation, Intune by Microsoft and XenMobile by Citrix.

MI Portal” means MI’s website portal for developers. The MI Portal is currently located at: https://community.mobileiron.com/community/developers.

MI Product” means MobileIron Cloud and/or MobileIron Core hosted by MI.

Open Source” has the meaning set forth in Section 4.

Non-Production Purpose” means the sole purpose of internal development, testing and support of the integration or interoperability between Partner Solution(s) with the applicable MI Solution(s) in accordance with the Documentation.

Partner Solution(s)” means the applications, devices, products, cloud services and/or solutions that Developer is integrating with an MI Solution (or components thereof).

Personal Information” means Developer Data relating to an identified or identifiable individual, including without limitation, geo-location information or a persistent identifier that may be used to identify or contact an individual.

Software” means the object code version of proprietary computer programs provided by or through MI to Developer hereunder for use in connection with any MI Product, including the device-side software used on devices registered to any MI Product (“Device Software”) and any connector software and/or any other server-side software (e.g. MobileIron Sentry Software/virtual appliance/machine) (collectively, the “Premise Software”), each of which may be delivered to Developer for use in connection with any MI Product, and any Documentation, backup copies and updates, upgrades, maintenance releases, or bug fixesto any of the foregoing provided to Developer hereunder.

2. MI PRODUCT.

2.1 Access. MI will approve Developer’s use of or access to one or more MI Products under the terms of this Agreement.

2.2 License. Subject to the terms of this Agreement, during the term of this Agreement, MI grants Developer a non-exclusive, non-transferable, non-sublicensable license, to (a) access and use the MI Product(s); (b) to install, copy and use Premise Software in connection with the applicable MI Product(s) on systems and equipment owned by, controlled by and managed on behalf of Developer; and (c) to install, copy and use Device Software in connection with the applicable MI Product(s) on mobile devices used by Developer Representatives, each solely for the Non-Production Purpose and solely in accordance with the applicable Documentation. Developer may also maintain a reasonable number of copies of the applicable Software on its systems for backup and recovery purposes. The MI Product(s) may only be used by Developer Representatives and Developer shall remain liable and responsible for the actions or inactions of the Developer Representatives which are in breach of this Agreement. There are no implied licenses granted by MobileIron under this Agreement.

2.3 In-Licensed Materials. The Software may contain or may interoperate with software services or other technology that is not owned by MI but has been licensed to MI (“In-Licensed Materials”). The In-Licensed Materials may be subject to additional terms and conditions, as identified on http://www.mobileiron.com/legal/thirdpartyterms (or other URL designated by MobileIron) or as otherwise made available to Developer. Such terms and conditions are incorporated by reference herein.

2.4 Data Communications. To the extent any Personal Information of Developer Representatives is obtained by, or communicated to, MI by Developer in performance by MI of its obligations under this Agreement, MI agrees that it (and/or its contractors) will not collect, access, use, store, disclose, transfer or otherwise process (collectively, “Process” or “Processing”) any such Personal Information except (a) for the purposes of this Agreement, including without limitation, to implement and deliver the Software and its features and associated services, provide Developer support, and help Developer prevent or address service or technical problems; or (b) as otherwise expressly permitted by Developer in this Agreement or otherwise; or (c) as compelled by law. Developer shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the Processing of Personal Information of any individual whose Personal Information Developer’s employees, contractors or other agents Process (including, without limitation, by disclosing the Personal Information to MI) in connection with the Developer’s use of or access to any Software. The Software can communicate with a gateway hosted by MI as part of its normal operations which provides certain functionality, confirms license compliance, and reports aggregated statistical data (such as such as product or feature usage, device metrics/metadata and/or mobile application usage), which is anonymized and aggregated so that it does NOT and cannot contain any information identifiable or attributable to any individual ("Aggregated Anonymous Data”). Developer agrees that MI shall have the right to use, store, analyze, and disclose such Aggregated Anonymous Data.

3. RESTRICTIONS, CONDITIONS & REQUIREMENTS.

3.1 License Restrictions & Conditions. The licenses set forth in Section 2 do not include any rights to, and Developer shall not:

(a) use or access the MI Product(s) or Software (or portions of either of the foregoing) to create or develop any product or service (including any feature or functionality therein) competitive to any MI Product or Software (or components of either of the foregoing));

(b) use or access the MI Product(s) or Software (or portions of either of the foregoing) except for supporting the Non-Production Purpose;

(c) reproduce the MI Product(s) or Software (or portions of either of the foregoing), except for copies of the Software as expressly permitted by the license grant in Section 2.2;

(d) modify, translate or create any derivative work of the MI Product(s) or Software (or portions of either of the foregoing);

(e) sell, lease, loan, provide, distribute or otherwise transfer the MI Product(s) or Software to any third party, except to Developer Representatives as expressly authorized by this Agreement;

(f) reverse engineer, disassemble, decompile or otherwise attempt to gain access to the source code of the MI Product(s) or Software (or portions of either of the foregoing) except to the extent that such prohibition is expressly precluded by applicable law;

(g) display or disclose the MI Product(s) or Software (or portions of either of the foregoing) to any person, except to Developer Representatives as expressly authorized by this Agreement;

(h) use the MI Product(s) or Software (or portions of either of the foregoing) for third-party training, commercial time-sharing, service bureau, SaaS or subscription service or rental use;

(i) use any MI Product(s) or Software (or portions of either of the foregoing) to store or transmit infringing, libelous, other unlawful or tortious material, or other material in violation of any third party privacy or other rights;

(j) interfere with or disrupt the integrity or performance of any MI Product(s) or Software (or portions of either of the foregoing) or any third party data contained therein; or

(k) release, publish, and/or otherwise make available to any third party the results of any performance, functional or security evaluation of any MI Product(s) or Software (or portions of either of the foregoing) without the prior written approval of MI;

(l) defeat or circumvent any controls of MI Product(s) or Software (or portions of either of the foregoing) placed on the number of users supported;

(m) unbundle any component of any MI Product(s) or Software;

(n) employ or authorize a MI Competitor to use or access the MI Product(s) or Software (or portions of either of the foregoing) on its behalf, to view the MI Product(s) or Software (or portions of either of the foregoing), or to provide management, hosting, support or similar services with regard to the MI Product(s) or Software without the prior written consent of MI;

(o) remove, alter or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of MI Product(s) or Software (or portions of either of the foregoing); and/or

(p) cause, encourage or assist any third party to do any of the foregoing.

3.2 Developer Responsibilities. Developer shall: (a) be solely responsible for the accuracy, quality, integrity and legality of Developer Data and of the means by which Developer (and Developer Representatives) acquire, upload, transmit and process Developer Data; and (b) use commercially reasonable efforts to prevent unauthorized access to or use of any MI Product, and notify MI promptly of any such unauthorized access or use; and (c) make such disclosures, obtain such consents, provide such choices, implement such safeguards and otherwise comply with any applicable law, rule or regulation regarding the collection, access to, use, storage, disclosure, transfer or other processing (“Process” or “Processing”) of Personal Information of any individual whom Developer authorizes to use or access any MI Product or Software; and (d) be responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the applicable MI Product and Software, including, without limitation, computers, computer operating systems and web browsers.

3.3 Consultants. Developer shall have the right to exercise its license rights under Section 2 during the term of this Agreement through consultants, provided that all the following conditions are met: (a) any such consultant is not an MI Competitor; (b) any such consultant exercises such license only on behalf of and for the sole benefit of Developer; (c) Developer ensures that any such consultant is bound by all terms and conditions of this Agreement; and (d) Developer is liable for any non-compliance by any such consultant with the terms and conditions of this Agreement.

3.4 Legal Compliance. Developer will comply at all times with applicable law in connection with its use or access of the MI Product(s) and/or Software. Without limiting the foregoing, Software and Documentation, including technical data, may be subject to import and export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Developer agrees to comply with all such regulations.

3.5 Updates and Modifications. MI may, in its sole discretion, provide replacements, updates, modifications or bug fixes for the MI Product(s) or Software to Developer during the term of this Agreement. Any such updates, modifications or bug fixes shall be deemed part of the applicable MI Product(s) or Software and subject to the license and other terms and conditions hereunder.

3.6 Support. Developer shall not be entitled to any support or maintenance services. Any such services are provided by MI in its sole discretion.

4. OPEN SOURCE. The MI Product(s) may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source”), which Open Source may have additional or different terms or conditions applicable to Developer’s use and/or access thereof as identified on the MI Portal or otherwise provided in Documentation. Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source license terms and conditions to the extent required by the applicable licensor.

5. Ownership. Developer acknowledges and agrees that MI and its suppliers own all right, title and interest (including without limitation all patent rights, copyrights, trade secrets, trademarks and other proprietary rights) in and to the MI Product(s), Software and any modifications, translations or other derivative works thereof, regardless of authorship, except for licenses expressly granted hereunder. Developer acknowledges that the license granted under this Agreement does not provide Developer with title to or ownership of the MI Product(s), but only a right of limited use under the terms and conditions of this Agreement. All suggestions or feedback provided by Developer or its employees or contractors or other agents to MobileIron with respect to the MI Product(s) or Software shall be MI’s property and deemed Confidential Information of MI, and Developer hereby assigns the same to MI.

6. Confidentiality. "Confidential Information" means any non-public data, information and other materials regarding the products, software, services, or business of MI and/or its suppliers provided under or in connection with this Agreement by MI ("Disclosing Party") to Developer ("Receiving Party") where such information is marked or otherwise communicated as being "proprietary" or "confidential" or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder or exercise rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party's Confidential Information only to those employees and consultants (subject to compliance with Section 3.3) of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee or consultant shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee or consultant with the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or omission of Receiving Party; (b) is rightfully known by Receiving Party prior to receiving such information from Disclosing Party and without restriction as to use or disclosure; (c) is independently developed by Receiving Party without use of Disclosing Party’s Confidential Information and without breach of this Agreement; or (d) is rightfully received by Receiving Party from a third party without restriction on use or disclosure. Notwithstanding the foregoing obligations, the Receiving party may disclose the Disclosing Party’s Confidential Information as required by any court or other governmental body or as otherwise required by law or regulation, provided, however, that the Receiving Party shall (1) unless prohibited by law, provide prompt notice of such court order or requirementto the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure; and (2) disclose the minimum amount of Confidential Information needed in order to be compliant with such order or legal requirement. Developer agrees that the MI Product(s) contain valuable trade secrets and are Confidential Information of MI. In no event, however, shall Developer disclose any Confidential Information to any MI Competitor.

7. Warranty Disclaimer. DEVELOPER ACKNOWLEDGES THAT, THE MI PRODUCT(S) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER MI NOR ANY OF ITS SUPPLIERS WARRANT THAT THE MI PRODUCT(S) WILL MEET DEVELOPER’S NEEDS, WILL FUNCTION PROPERLY OR WILL BE ERROR-FREE.

8. Term and Termination. This Agreement shall commence on the Effective Date and shall continue in perpetuity, unless earlier terminated pursuant to this Section. Either party may terminate this Agreement upon written notice in the event the other party materially breaches this Agreement and such breach remains uncured five (5) days after written notice thereof. Either party may terminate this Agreement for convenience upon at least thirty (30) days prior written notice. The rights and obligations of the parties in Sections 1, 2.4 (with respect to MI’s rights to Aggregated Anonymous Data), 3.1, 3.3 (with respect to Developer’s liability for its consultants), 5, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement and any referenced agreement shall survive in accordance with their own terms. Within five (5) days after any termination of this Agreement, Developer shall return to MI and/or cease using and accessing the MI Product(s) and all copies thereof (if applicable). Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to any expiration or termination of this Agreement.

9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO CASE SHALL MI (OR ITS SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, LOST REVENUE, LOST DATA, LOST PROFITS OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE ITEMS AND SERVICES PROVIDED HEREUNDER EXCEED FIVE HUNDRED U.S. DOLLARS ($500). THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THESE LIMITS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, EVEN IF REPRESENTATIVES OF MI, ANY OF ITS SUPPLIERS OR DEVELOPER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Notices. Any notice provided to a party hereunder shall be in writing or via electronic communications. Notices to MI shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: MobileIron, Inc., 415 East Middlefield Road, Mountain View, CA 94043, U.S.A., Attention: Legal Department. Notice to Developer required or permitted hereunder, may be given by transmission to the email address provided by Developer when registering for access to the MI Product(s) (or as updated from time to time in using the facilities for this purpose provided in the MI Portal); such email notices shall deemed received if it arrives at Developer’s email system as evidenced by either party’s contemporaneously created computer records.

11. Entire Agreement; Modification. Both parties agree that this Agreement, including all referenced agreements, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous agreements and communications relating to the subject matter of this Agreement. MI has the right to impose additional terms and conditions that govern the MI Product(s) or add to or change this Agreement, by posting such addition or change on the MI Portal or otherwise providing notice to Developer. Developer's continued use of the MI Product(s) following the posting or providing of any such addition or change will constitute Developer's acceptance of the addition or change.

12. General Provisions. Except as expressly agreed to in writing, each party shall bear its own costs and expenses in performing any and all activities contemplated by this Agreement. The failure to enforce any term of this Agreement on one occasion shall not prevent enforcement on any other occasion or the enforcement of any other term. If any provision of this Agreement shall be adjudged by any court to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary. Except as otherwise set forth in Section 13, this Agreement is governed by the laws of the State of California, without regard to its conflicts of laws provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. Except as otherwise set forth in Section 13, the courts of Santa Clara County, California shall be the exclusive venue for any claims related to or arising out of this Agreement, and each party hereby consents to the personal jurisdiction of such courts. The prevailing party in any action to enforce this Agreement shall be entitled to recover attorneys’ fees. This Agreement, any disputes hereunder, and all services to be provided hereunder by MI to Developer (if any) shall be conducted and provided in the English language. Developer may not assign this Agreement, or any of its rights or obligations hereunder, by operation of law or otherwise, without MI’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any purported assignment by Developer other than as provided above shall be null and void. Nothing in this Agreement will impair MI’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that Developer may develop, produce, market, or distribute.

13. Arbitration. If Developer’s principal place of business is outside of the United States, the following shall apply: Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be referred to and finally resolved by arbitration under International Dispute Resolution Procedures of the American Arbitration Association in force on the date when the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA without reference to conflicts of law provisions. The number of arbitrators shall be thee (3), provided that the arbitrators so selected shall have substantial experience in licensing and contract disputes. The seat, or legal place, of arbitration shall be New York, New York, USA. The language to be used in the arbitral proceedings shall be English. The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the forgoing, MI shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.