Danger Developer License

BY CLICKING ON THE "ACCEPT" BUTTON OR DOWNLOADING MATERIALS FROM THIS WEBSITE, YOU AND THE COMPANY OR ENTITY THAT YOU REPRESENT ("DEVELOPER") ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS DEVELOPER LICENSE AGREEMENT ("AGREEMENT"). IF DEVELOPER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1. License. Subject to the terms and conditions of this Agreement, Danger grants to Developer a nonexclusive, nontransferable, nonsublicensable, license to internally use the materials Developer is about to download (the "Licensed Technology") solely to create Content. "Content" shall mean applications, ringtones, graphics or other materials created by Developer that are designed to operate with Danger's proprietary software and service platform.

2. License Restrictions. Developer shall not (a) provide, distribute, license or sell the Licensed Technology to any third party; (b) reverse assemble, reverse compile, decrypt, extract, or otherwise attempt to discover any source code (or other underlying data) of the Licensed Technology not already provided in source code form or (c) use the Licensed Technology, in whole or part, to develop any products other than Content.

3. Ownership. Subject to Danger's ownership of the Licensed Technology, Developer shall retain all rights, title and interest in and to any Content it develops. Danger shall own all right, title, and interest in the Licensed Technology and Developer shall have no ownership interest therein. Except as expressly provided herein, no other right or license is granted under this Agreement. All rights not expressly granted hereunder by a party are expressly reserved to such party.

4. Development and Evaluation of Content. Developer shall, at its own discretion, develop and deliver to Danger completed Content for Danger's evaluation of such Content. Upon delivery of any Content, Danger shall, at its own discretion, review and evaluate the Content. Developer hereby grants to Danger a license to use, copy and distribute the Content delivered to Danger solely to evaluate and test the Content. Danger shall then decide, in its sole discretion, whether or not to enter into any further agreement with Developer regarding the further development, license, and/or distribution of such Content, or any other relationship with Developer related to the Content. The Developer understands that nothing herein requires Danger to proceed with any proposed transaction or business relationship in connection with or related to the Content, and that any such transaction or business relationship shall be at the mutual agreement of the parties, with the terms and conditions of such agreement to be stated in a writing executed by authorized representatives of both parties.

5. Developer's Covenants and Representations. Developer represents, warrants and agrees: (a) that Developer has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder, (b) Developer's work and any of Developer Content shall be original and shall not infringe or violate the rights of or breach any of Developer's obligations to any third party and (c) Developer has or will obtain any and all licenses or permissions from third parties necessary for Developer to create and distribute Content. Developer shall indemnify Danger from and against any and all losses, costs and expenses (including attorney's fees) incurred by Danger as a result of Developer's breach of any of the foregoing warranties, or that arise from a third party's use of the Application.

6. WARRANTY DISCLAIMER. DANGER MAKES NO WARRANTIES WITH RESPECT TO THE LICENSED TECHNOLOGY AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, DANGER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED TECHNOLOGY IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OF THE FOREGOING, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST OR INACCURATE DATA. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY UNDER SECTION 9, TO ANY BREACH OF THE LICENSE GRANTS OR RESTRICTIONS IN SECTION 2 OR 3, TO ANY OF DEVELOPER'S INDEMNITY OBLIGATIONS, OR TO MISAPPROPRIATION OF LICENSED TECHNOLOGY.

8. PRODUCT WARRANTY INVALID. DEVELOPER ACKNOWLEDGES AND AGREES THAT THE DOWNLOAD OF ANY SOFTWARE (INCLUDING LICENSED TECHNOLOGY) ONTO OR TAMPERING WITH ANY DANGER HIPTOP DEVICE SHALL INVALIDATE THE LIMITED PRODUCT WARRANTY APPLICABLE TO ANY SUCH DEVICE.

9. Confidential Information. Developer agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, confidential or proprietary information related to the technology or business of Danger that Developer learns in connection with this Agreement ("Confidential Information"). The Developer agrees (a) to hold the Confidential Information in confidence for a period of three (3) years from the Effective Date and to take all precautions to protect such Confidential Information as it employs with respect to its most confidential materials, but in no case shall less than reasonable precautions, (b) not to disclose any such Confidential Information or any information derived there from to any third person, (c) not to make any use whatsoever at any time of such Confidential Information except for the sole purposes expressly defined herein, (d) not to copy or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any such Confidential Information, and (e) not to remove or export from the United States or re-export any such Confidential Information except in compliance with all licenses and approvals required under applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce. "Confidential Information" shall not include information that Developer can document is in or (through no improper action or inaction by Developer) enters the public domain.

10. Term and Termination. This Agreement shall remain in effect unless terminated earlier as provided herein. Either party may terminate this Agreement, with or without cause, upon thirty (30) days notice to the other party. Developer agrees that it may be notified in a similar manner to which Danger made the Licensed Technology available to Developer. Danger may terminate this Agreement immediately and without notice, upon any material breach of the Agreement by Developer. Upon any such termination, Developer shall return to Danger or destroy (and certify such destruction in writing to Danger) all Licensed Technology and any Confidential Information of Danger, and all licenses granted hereunder shall terminate. Sections 2, 3 and 5 through 11 shall survive termination of this Agreement.

11. General. This Agreement shall be governed by and construed under the laws of the State of California, USA without regard to conflicts of laws provisions thereof. No waiver, amendment or modification of any provision hereof or of any right or remedy hereunder will be effective unless made in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No failure by any party to exercise, and no delay by any party in exercising, any right, power or remedy with respect to the obligations secured hereby will operate as a waiver of any such right, power or remedy. Neither this Agreement nor any right or obligation hereunder may be assigned or delegated by Developer (including by operation of law) without Danger's express prior written consent, and any assignment or delegation without such consent will be void. Danger may assign this Agreement without the prior written consent of Developer. This Agreement will be binding upon and inure to the benefit of the successors and the permitted assigns of the respective parties hereto. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings, written or oral, between the parties hereto with respect to the subject matter hereof.

Last modified: 03/28/05