SUBSCRIBER TERMS OF USE (TOU) PLEASE READ THIS TOU CAREFULLY BEFORE ACCESING OR USING THE SOFTWARE AND/OR THE DOCUMENTATION. BY CLICKING ON THE "I ACCEPT" BUTTON, OR BY ACCESSING AND/OR USING THE SOFTWARE AND/OR THE DOCUMENTATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS TOU OR, IF THE RIGHT TO USE IS TO BE EXERCISED BY OR ON BEHALF OF AN ENTITY AND YOU ARE NOT AUTHORIZED TO DO SO BY THAT ENTITY, THEN PROMPTLY CLICK ON THE "DECLINE" OR "I DO NOT ACCEPT" BUTTON, WHICH WILL CANCEL THE ATTEMPT TO ACCESS THE SOFTWARE AND DOCUMENTATION. YOUR USE OF THE SOFTWARE AND THE DOCUMENTATION CONSTITUTES AN ACKNOWLEDGEMENT THAT YOU HAVE READ THIS TOU, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. PREAMBLE: These Terms of Use ("TOU") are entered into by and between Alcatel-Lucent USA Inc., a Delaware corporation with a principal office at 600-700 Mountain Avenue, Murray Hill, New Jersey 07974, all of whose shares are directly or indirectly controlled by Nokia Corporation, a company incorporated and existing under the laws of Finland ("Nokia"), and you individually, if you are agreeing to it in your own capacity, or if you are authorized to enter into this TOU on behalf of your employer, company or other organization, then the entity for whose benefit you act ("Subscriber" or "you"). Nokia and Subscriber (or you) are sometimes referred to herein individually as a "Party" and collectively as the "Parties." This TOU is effective on the date that you click on the "I accept" button and that you first obtain access to the Software on the Amazon Web Services Marketplace ("Amazon WSM"), whichever event occurs last ("Effective Date"). NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained and intending to be legally bound thereby, the Parties agree as follows: 1. ACCESS TO SOFTWARE FUNCTIONALITY AND DOCUMENTATION 1.1 Nokia shall provide Subscriber, upon Subscriber's activation of a unique key received from Nokia ("Activation") and the clicking by Subscriber of "I accept" to this TOU (whichever event occurs last), with a right of access to and limited use of (i) the Nokia Motive Connected Device Platform, consisting of all APIs, design tools and kits, templates, use cases, workflows, software simulators, code samples and other features and applications that form a part thereof, including all libraries of device protocols, updates, upgrades, maintenance releases, revisions and enhancements that Nokia may install therein, add thereto, and make available from time to time thereon, all as described in the Documentation (the "Software"), and (ii) the associated written materials containing the technical and functional specifications of the Software (the "Documentation") which includes the permitted use of the Software under the TOU, for up to one hundred (100) individual end user devices under Subscriber's control, both on a test and a commercial basis ("the Permitted Use"). 1.2 The Software and the Documentation shall be available to Subscriber on the Amazon WSM only, and not by means of the delivery to Subscriber of a copy of the Software or the Documentation in binary, object code, executable or other form. Subscriber shall have no right to make any copies of anything made available to it by Nokia via the Amazon WBS under this TOU. 2. SUBSCRIPTION 2.1 Subject to Subscriber's continued compliance with the terms and conditions of this TOU, Nokia hereby grants to Subscriber a fee free, non-exclusive, non-transferable, non-sublicensable, worldwide, and personal right to use the Software for which Activation has been authorized, according to the requirements set out in the Documentation, solely for Subscriber's internal business purposes, and only for the Permitted Use. Nokia grants Subscriber no right to configure, customize or create derivative works of or otherwise modify the Software or any elements thereof. 2.2 Should Subscriber wish to extend the use of the Software and the Documentation to more than one hundred (100) devices (i.e., outside the scope of the Permitted Use), then Subscriber shall be required to enter into a commercial license with Nokia for this purpose, subject to the acceptance by Subscriber of a separate commercial TOU or similar written agreement for this purpose, as provided by Nokia. 3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 3.1 The Software and Documentation are not sold to Subscriber, nor is Subscriber provided with a copy of the Software or Documentation in binary, executable or object form or otherwise. Instead, Subscriber receives the subscription and right to use the Software and Documentation as stated in Section 2 of the TOU. Subscriber acknowledges and agrees that Nokia and its third party licensors own and retain full ownership rights in the Software and Documentation and in all patents, copyright, trade secrets, trademarks, and any and all other proprietary rights ("the Intellectual Property Rights") that Nokia owns or has the right to license and/or use. 3.2 No rights or licenses are granted to Subscriber, directly or indirectly, whether impliedly, under any theory of estoppel, or otherwise, under any Intellectual Property Rights (including, but not limited to, patents), whether or not the exercise of any right herein granted necessarily employs an invention of any existing or later issued patent, of Nokia or of any third party except those expressly set forth in Sections 2, or the rights provided for in Section 5 of the TOU, and no rights or licenses are granted to use any Nokia patents. 4 CONFIDENTIAL INFORMATION 4.1 The Software, Documentation, and any other information provided to Subscriber by Nokia for use with the Software ("Confidential Information") constitute and contain Nokia's confidential and proprietary information, and Subscriber shall not disclose Confidential Information to any third party or use it for any purpose other than the Permitted Use. Notwithstanding the preceding sentence, Subscriber is not required to maintain the confidentiality of any portions of the Confidential Information (a) previously known to Subscriber free of any obligations to keep confidential; (b) generally known to the public, provided that such public knowledge was not the result of any act attributable to Subscriber; (c) which Nokia otherwise explicitly agrees in writing need not be kept confidential. Subscriber may disclose Confidential Information which is requested pursuant to a judicial or governmental request, requirement or order under law, provided that Subscriber provides Nokia with sufficient prior notice and reasonable assistance to contest such request, requirement or order and to seek protective measures. 4.2 Subscriber may grant access to the Confidential Information only to Subscriber's employees, consultants and contractors who have a need to know to the extent required for the Permitted Use, who agree in writing to be bound to terms at least as restrictive as those stated in this TOU and who Subscriber causes to comply with the provisions of this TOU. Subscriber will promptly report to Nokia any actual or suspected violation of this Section 4 and shall take all reasonable steps requested by Nokia to prevent or remedy any such violation. 5 Open Source Software 5.1 The Software includes "Open Source Software", which means any software and its updates and upgrades, which are not subject to this TOU but, if at all, to separate open source software terms and conditions. Such (open source) software includes, but is not limited to, software licensed under and licenses listed or described at http://www.opensource.org/docs/definition.php or licenses currently listed at http://www.opensource.org/licenses or software which is subject to any of the following license terms: (a) prohibition on imposing restrictions on distribution of the software or derivatives (for purposes of this definition of Open Source Software, derivatives shall mean any other software incorporated into, derived from or distributed with such software) or prohibition on imposing restrictions on aggregation with any other software; or (b) prohibition on claiming royalties, fees or charges for the software or derivatives; or (c) requirement to include and/or allow distribution of the software or derivatives in source code; or (d) requirement to grant users or licensees the right to access any source code of the software or derivatives. 5.2 Subscriber acknowledges and accepts that Nokia is, if and to the extent applicable, making available a right to use Open Source Software on an "as is" basis under the respective Open Source Software license terms. Nokia shall not be liable for, and will not defend, indemnify, or hold Subscriber harmless for any claims arising out of or related to Open Source Software. This includes, but is not restricted to, any and all claims for direct, indirect, incidental, special, exemplary, punitive or consequential damages in connection with Open Source Software or its components (whether included in the Software or not). This includes claims for or in connection with the title in, the non-infringement of or interferences caused by Open Source Software. 6 RESTRICTIONS ON USE AND TRANSFER OF RIGHTS TO SOFTWARE AND DOCUMENTATION 6.1 Subscriber shall not, and shall not permit other persons or entities, including any of its affiliated companies, to: (i) directly or indirectly, by electronic or other means, use, reproduce, publish, distribute, rent, lease, sell, proport to sublicense, assign or otherwise transfer any elements of the Software and/or Documentation or make may any part of the Software or Documentation accessible on a network external to Subscriber or Subscriber's organization; (ii) reverse-engineer, decompile, disassemble, merge, modify, create derivative works of, or translate the Software and Documentation or use any part of the Software and Documentation for any purpose other than the Permitted Use; (iii) sublicense, time share, or rent, do facility management, act as a software or service provider, or make any application development use of the Software; or (iv) remove or obscure any copyright, trademark or other proprietary notices or legends from any portion of the Software or the Documentation. Subscriber acknowledges that as the Software is being made available to it on a "software as a service" basis, it is intended that the Software cannot be decompiled or reverse engineered. 6.2 Subscriber acknowledges and understands that the Software and Documentation are intended for standard commercial uses only. Subscriber may not use the Software and Documentation in or for hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. Nokia has no knowledge of and assumes no risk for the possible consequences of using the Software and Documentation in any such hazardous environments. If Subscriber choses to use the Software and Documentation in any such hazardous environments without fail-safe controls, then it shall do so entirely at its own risk. Subscriber agrees to defend, indemnify, and hold Nokia harmless from any and all claims for loss, cost, damage, expense or liability that may arise out of or in connection with the use of Software or the Documentation in such hazardous environments. 7 TERM 7.1 This TOU and the rights granted to Subscriber hereunder shall become effective on the Effective Date. 7.2 This TOU will terminate automatically and without provision of notice by Nokia if (i) Subscriber fails to comply with any of the terms or conditions of this TOU, including any attempt to make or to transfer any copy of the Software or Documentation to another party or any attempt to modify the Software, (ii) Subscriber ceases doing business, is dissolved, makes an assignment for the benefit of creditors of all or substantially all of Subscriber's assets or voluntarily or involuntarily enters bankruptcy, or (iii) in any event, no later than twelve (12) months after the Effective Date. 7.3 Upon expiration or termination of the TOU for any reason, Subscriber agrees that Subscriber will cease all use of the Software and Documentation and all Confidential Information. 8 LIMITED WARRANTY 8.1 Nokia represents and warrants to Subscriber that it either owns or has an enforceable right from its licensors to grant a right to use the Software and the Documentation under the terms and conditions stated in this TOU. 8.2 Nokia believes that the Software is correct and accurate, but Nokia shall not be held to any liability whatsoever for errors or omissions therein. 8.3 Neither the execution of this TOU nor anything in this TOU or in the Software, Documentation or other Confidential Information shall be construed as an obligation upon Nokia to furnish any person, including Subscriber, any assistance of any kind whatsoever, or any information other than the Software, or to revise, supplement, or elaborate upon the Software. 8.4 EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 8.1, THE SOFTWARE, DOCUMENTATION OR OTHER INFORMATION TO WHICH ACCESS IS FURNISHED UNDER THE TOU IS PROVIDED "AS IS" WITH ALL FAULTS, LATENT AND PATENT, AND WITHOUT ANY WARRANTY OF ANY TYPE. NOKIA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED. BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, NOKIA MAKES NO REPRESENTATIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE USE OF THE SOFTWARE, DOCUMENTATION OR OTHER INFORMATION FURNISHED UNDER THE TOU WILL NOT INFRINGE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY AND IT SHALL BE THE SOLE RESPONSIBILITY OF SUBSCRIBER TO MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION OF RIGHT TO USE UNDER PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. 9 LIMITATION OF LIABILITY 9.1 NOKIA SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY CLAIM BY SUBSCRIBER OR ANY OTHER THIRD PARTY ON ACCOUNT OF, OR ARISING FROM, THE USE OF OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR OTHER INFORMATION FURNISHED UNDER THE TOU. 9.2 Except for any breach by Subscriber of Sections 4 or 6, neither Nokia nor Subscriber shall be liable for incidental, indirect, special, exemplary, or consequential loss or damages of any nature, or for lost profits, savings or revenues of any kind, however caused under this TOU, whether or not the applicable Party has been advised of the possibility of such damages. This provision will survive failure of an exclusive remedy. 9.3 TO THE EXTENT THAT ANY EXCLUSION OF DAMAGES ABOVE IS NOT VALID, SUBSCRIBER AGREES THAT IN NO EVENT WILL NOKIA'S AND ITS AFFILIATES' TOTAL LIABILITY UNDER OR RELATED TO THIS TOU (INCLUDING BUT NOT LIMITED TO ITS LIABILITY UNDER SECTION 10) EXCEED FIVE THOUSAND U.S. DOLLARS (US $5,000). 9.4 THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT SUBSCRIBER WOULD NOT BE PERMITTED TO USE THE SOFTWARE ABSENT THE TERMS OF THIS SECTION. THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS TOU MAY BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 9.5 NOKIA SHALL NOT BE HELD TO ANY LIABILITY WITH RESPECT TO ANY CLAIM BY SUBSCRIBER OR ANY OTHER THIRD PARTY ON ACCOUNT OF, OR ARISING FROM, ANY USE CASES, WORK FLOWS, SOFTWARE SIMULATORS, CODE SAMPLES, DESIGN KITS, APPLICATIONS OR SIMILAR CONFIGURED OR CREATED BY USER THROUGH THE USE OF THE SOFTWARE AND DOCUMENTATION INCLUDING BUT NOT LIMITED TO INFRINGEMENT. 10 FEEDBACK 10.1 In return for the right to use granted hereunder, if Subscriber provides Nokia or any of its affiliates with any reports on bugs or errors in the Software, or reports on the operation of the Software, or suggested modifications (collectively, "Feedback") during the term of this TOU, then Nokia and its affiliates shall have the right to use such Feedback for any purpose without payment or accounting to Subscriber. Subscriber agrees that under no circumstances will any Feedback provided by Subscriber contain any confidential information of Subscriber or of any other third party. 11 EXPORT 11.1 The Parties acknowledge that the Software, Documentation, and Confidential Information may be subject to the export laws and regulations of the United States, the European Union and/or other countries (cumulatively, "Export Laws"). Subscriber shall not use the Software, Documentation and Confidential Information (even if incorporated into other items) in violation of the Export Laws. If requested by Nokia, Subscriber shall sign written assurances and other export-related documents as may be required for Nokia to comply with the Export Laws. 12 PRIVACY 12.1 Nothing herein will be deemed to grant Subscriber any right to use the Software, Documentation, or Confidential Information in any manner that violates any law or regulation relating to privacy of information. Subscriber shall indemnify and hold harmless Nokia, its affiliates and their respective authorized resellers and distributors against all liability for claims of any party relating to the use of the Software or Documentation in violation of any privacy-related law or regulation. 13 US GOVERNMENT USE 13.1 The Software is commercial software. If the Subscriber is an agency, department, or other entity of the United States Government, then the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software or of the Documentation, including related technical data and manuals, is restricted by a license agreement or by the terms of this TOU in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defence Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited. 14 GENERAL 14.1 Except as specifically provided for herein, the waiver from time to time by a Party of any of its rights or its failure to exercise any remedy will not operate or be construed as a continuing waiver of the same or of any other of such Party's rights or remedies provided in this TOU. 14.2 If any term, covenant or condition of this TOU or the application thereof to any Party or circumstances is, to any extent, held to be invalid or unenforceable, then the remainder of this TOU, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby and each term, covenant or condition of this TOU shall be valid and be enforced to the fullest extent permitted by law. 14.3 Neither Nokia nor Subscriber shall be liable for any loss, damage, delay, or failure of performance resulting directly or indirectly from any cause which is beyond its reasonable control, including, but not limited to, acts of God, extraordinary traffic conditions, riots, civil disturbances, wars, states of belligerency or acts of the public enemy, strikes, work stoppages, or the laws, regulations, acts, or failure to act of any governmental authority. If performance under this TOU is prevented for a continuous period of two (2) months or longer by any of the foregoing causes, either Party may terminate this TOU by giving written notice to the other Party. 14.4 Except as specifically provided for herein, the waiver from time to time by a Party of any of its rights or its failure to exercise any remedy will not operate or be construed as a continuing waiver of the same or of any other of such Party's rights or remedies provided in this TOU. 14.5 This TOU takes precedence over any conflicting terms or legends which may appear in or on the Software, Documentation, or Confidential Information. 14.6 Section headings contained in this TOU are inserted for convenience of reference only, will not be deemed to be a part of this TOU for any purpose, and will not in any way define or affect the meaning, construction or scope of any of the provisions hereof. 14.7 The laws of the State of New York of the United States of America (without giving effect to conflicts of law principles) govern all matters arising out of or relating to this TOU, including, without limitation, its construction, interpretation, performance, and enforcement, except if Subscriber is using the Software or Documentation outside of North America or South America, in which case the laws of France govern all matters arising out of or relating to this TOU. 14.8 The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded from this TOU. 14.9 All disputes between the parties will be finally settled in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three (3) arbitrators designated in conformity with the Rules. In cases where the laws of State of New York of the United States of America apply, the arbitration must take place in New York, New York. In cases where the laws of France apply, the arbitration must take place in Geneva, Switzerland. 14.10The Parties hereto have entered into this TOU in contemplation of personal performance, each by the other, and intend that the rights to use granted hereunder to a Party not be extended to entities other than such Party's affiliates without the other Party's express written consent. An "affiliate" means an entity that controls, is controlled by, or is under common control with a Party. Any purported assignment in violation of this TOU is void. Notwithstanding the preceding sentence, all of Nokia's rights, title, obligations, and interest in this TOU and any rights granted to it hereunder may be assigned to (i) any affiliate of Nokia; or (ii) any direct or indirect successor to all or any portion of the business of Nokia or its affiliates, which successor will thereafter be deemed substituted for Nokia as the Party hereto, effective upon such assignment. 14.11Nokia, at its sole discretion, may from time to time publish a revised and/or new version of this TOU (each such revised or new version will carry a distinguishing version number) which will govern all uses of the Software and Documentation after the posting of such revised or new version of this TOU. 15. ENTIRE AGREEMENT 15.1 This TOU sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and merges all prior discussions between them. Neither of the Parties shall be bound by any warranties, understandings or representations with respect to such subject matter other than as expressly provided herein, in prior written agreements, or in a writing signed with or subsequent to the execution hereof by an authorized representative of the Party to be bound thereby.