SPMark™ for Symbian OS v9 – END USER LICENSE AGREEMENT

THIS END USER LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN FUTUREMARK CORPORATION AND YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY). FUTUREMARK CORPORATION OWNS ALL INTELLECTUAL PROPERTY RIGHTS IN THE SPMark™ for Symbian OS v9 SOFTWARE AND PERMITS YOU TO USE THE SPMark™ for Symbian OS v9 SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SOFTWARE MEDIA, ELECTRONICALLY DOWNLOADING, INSTALLING, STARTING OR OTHERWISE USING THE SOFTWARE. ANY OF THE ABOVE ACTIONS INDICATE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND TO THOSE TERMS AND CONDITIONS.

SHOULD YOU NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL, START OR OTHERWISE USE THE SOFTWARE. EITHER RETURN THE UNOPENED MEDIA PACKAGE AND ACCOMPANYING ITEMS TO THE COMPANY FROM WHICH YOU OBTAINED THEM OR DELETE ALL POSSIBLE COPIES OF THE SOFTWARE FROM YOUR DEVICE.

YOU UNDERSTAND THAT, IF YOU PURCHASED THE SOFTWARE FROM AN AUTHORIZED RESELLER OF FUTUREMARK, THAT RESELLER IS NOT FUTUREMARK’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON FUTUREMARK’S BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.

DEFINITIONS

For the purpose of this Agreement:

1.1. "Agreement" shall mean this SPMark™ for Symbian OS v9 End User License Agreement.

1.2 "End User" shall mean an individual or an entity that has purchased or agreed to purchase License for Software granted by Hybrid for its internal purposes only.

1.3 "Futuremark" shall mean Futuremark Corporation, Kappelitie 6, 02200 Espoo, Finland, and its licensors, if any.

1.4 "Intellectual Property Rights" mean any and all intellectual property rights including but not limited to patents, copyrights, trademarks, trade secrets, know how, , registrations, applications, and rights to apply therefore, whether issued or pending and whether registerable on not.

1.5 "License" shall mean the right to use the Software under this Agreement.

1.6 "Licensee" shall mean You.

1.7 "Party" or "Parties" shall refer to the parties of this Agreement.

1.8 "Registration Code" is a personal code needed for activating any version of SPMark for Symbian OS v9 and provided to the End-user by Futuremark against payment of the current license fee.

1.9 "Software" shall mean the SPMark for Symbian OS v9 software, which is a testing software to be used for independent mobile device performance measurement and testing. Software is available in three versions with differing user rights:

a) "SPMark for Symbian OS v9" is a commercial version of the Software for private use with limited functionality.

b) "SPMark for Symbian OS v9 Professional Edition" is a commercial version of the Software for commercial and business use with full functionality, customization options and with the right to publish results in other places than in Futuremark's online service.

1.9 "Use" or "using" means to access, download, install, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.

GRANT OF LICENSE

2.1 Subject to the terms and conditions of this Agreement and Futuremark’s Software documentation Futuremark hereby grants Licensee during the validity of this Agreement a world-wide, non-transferable, non-exclusive, revocable right and license, without the right to sub-license, to use and copy the Software. The Software may be used as follows:

a) SPMark for Symbian OS v9 version may be used in any compatible mobile device, which is owned, leased or otherwise controlled by Licensee, provided that the Software is used only in that specific mobile device for which the Licensee purchased the License for.

b) SPMark for Symbian OS v9 Professional Edition may be used in any compatible mobile device, which is owned, leased or otherwise controlled by Licensee.

2.2 Licensee may make one back-up copy of the Software in machine executable code form, only to be used in the event that the original copy of the Software fails to function, is lost, damaged or destroyed. Licensee warrants that it will make no other copies of the Software and will not allow, authorize or assist others to copy any part or all of the Software in any form without the prior written approval of Futuremark.

2.3 Any use of Software in deviation to this Agreement is expressly forbidden. These right and license are temporary and valid only for as long as this Agreement is in force and Licensee operates under the terms and conditions of this Agreement.

2.4 This License gives Licensee limited license to use the Software. Futuremark solely retain all right, title and interest including but not limited to all Intellectual Property Rights to the Software, new versions, upgrades, updates, modifications, enhancements or copies thereof and all related documentation. All rights, titles and interest shall at all times remain solely the property of Futuremark. Futuremark will also retain all rights in and to the results of any possible work performed by Futuremark under this Agreement.

2.5 This Agreement shall not be deemed to result in the sale, transfer or any other conveyance of patents, trademarks, copyrights, or any other Intellectual Property Right of whatsoever nature held or used by Futuremark to Licensee.

EXTENSION TO GRANT OF LICENSE, ADVERTISING AND TRADE FAIR USAGE

3.1 The following special terms of this section 3 apply only to SPMark for Symbian OS v9 Professional Edition License.

3.2 In addition to the rights granted under section 2 above, the right to use entitles the Licensee of the SPMark for Symbian OS v9 Professional Edition License to:

a) use the Software in more than one (1) phone with the following restriction related to versions: - SPMark for Symbian OS v9 Professional Edition can be installed on several mobile devices within Licensee’s company,

b) use the Software for commercial demonstration of Licensee or any third party products or other promotional purposes of Licensee or any third party products,

c) make any demonstration with the help of the Software in connection with advertisements, sales or marketing collateral, exhibitions, trade fairs, or other public sales promotion or similar events,

d) use the Software as part of Licensee's own product or third-party product reliability or performance testing.

USAGE OF RESULTS AND TRADEMARKS

4.1 Only such test result output generated by the Software, that have been obtained with publicly available products (hardware and software, including drivers) can be published.

4.2 Regarding Licensees of SPMark for Symbian OS v9 Business and SPMark for Symbian OS v9 Developer’s License, the Futuremark hereby grants Licensee the right to publish, except in any country where a third party claims during the term of this License that such publication infringes that party's proprietary rights, benchmark test results obtained by Licensee from Licensee’s use of the Software, provided that with the publication of each result Licensee:

a) identifies Futuremark, the name and the version number of the benchmark Software used and Futuremark Corporation as the source of the Software (i.e., "SPMark™ for Symbian OS v9 by Futuremark"),

b) if the result is obtained with SPMark for Symbian OS v9 Professional Edition, clearly indicates together with the score, that the score is obtained with said version of the Software and that the results may not be comparable to those obtained with other versions of the Software,

c) states that the test was performed without independent verification by Futuremark, and that Futuremark makes no representations or warranties as to the result of the test;

d) follows proper trademark usage and acknowledge Futuremark’s trademark rights according to Futuremark’s trademark policy (e.g. "Product X achieved Y SPMark score. SPMark is a trademark of Futuremark in the U.S. and other countries"),

e) identifies the specific SPMark score(s) being reported (e.g., SPMark™ Total Score of 1000, SPMark™ Battery score of 500),

f) identifies the mobile device manufacturer, model, firmware version, and processor speed and type,

g) if present, identifies 3D accelerator manufacturer and brand name, 3D accelerator type, driver name, driver version, screen resolution and any other special conditions used to achieve the result. If the tests are run on memory card, identify the memory card type and size. Report any other configuration settings that might affect the score, like using Bluetooth network during the tests etc. Report also if the mobile device used for the test included existing user data (e.g. contact and calendar entries),

h) identifies the settings in Software that have been used for the test. All the settings that have been changed from the default have to be reported,

i) identifies the Symbian OS version and Series60 or UIQ version of the mobile device used for the test and any other special conditions used to achieve the test results, and

j) only uses products (hardware and software, including drivers) used in the test were shipping versions available to the general public.

LICENSE RESTRICTIONS

5.1 The Licensee shall not cause or permit any reverse engineering, disassembling, decompilation, translation, modification or adaptation of the Software or otherwise attempt to learn the inner workings, source code, structure, algorithms, or ideas underlying in the Software. Licensee is expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing and creating derivative works of the Software for any purpose including error correction or any other type of maintenance, except as expressly allowed in the documentation.

5.2 Licensee warrants that it will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Software in any manner to any third party.

5.3 SPMark for Symbian OS v9 version may not be installed in a network server computer to be used by several mobile devices.

To use the Software in several mobile devices, Licensee must purchase separate License for each mobile device or have either SPMark for Symbian OS v9 Business or SPMark for Symbian OS v9 Developer’s Edition License. Extended user rights may apply to certain Software versions. These extensions are described in section 3 of this Agreement.

5.5 Any reproductions of any portion of the Software by the Licensee shall always include any proprietary and statutory copyright notices present in the original Software.

5.6 The Registration Code is strictly personal and should not be disclosed to a third party in any circumstances.

5.7 Licensee is not entitled to use the Software in any manufacturing process under this Agreement. The License shall not grant Licensee, except for SPMark for Symbian OS v9 Professional Edition License, rights to use Software for commercial purposes including, but not limited to, publishing performance scores obtained in any media or presentation by running the Software.

5.8 Licensee is not allowed to use the Software for collecting an information database to be used for marketing or other business purposes to the general public or other companies.

RIGHTS TO THE SOFTWARE

6.1 All proprietary and Intellectual Property Rights associated with or arising from the Software and the related materials belong and remain solely with Futuremark.

6.2 The License shall not give the Licensee any ownership or title to the Software or any related material. CUSTOMER SUPPORT

7.1 Customer support is not included in the SPMark for Symbian OS v9 License granted with this Agreement. Futuremark provides customer support via email to all of its SPMark for Symbian OS v9 Professional Edition Licensees. Futuremark may, at its sole discretion and at any time, stop providing customer support for Licensees of the said versions after notifying such Licensees via email.

7.2 This Agreement does not grant Licensee rights to any improvements, modifications, enhancements, updates, upgrades, or patches to the Software.

END-USER'S FEEDBACK AND DISPOSAL OF RESULTS

8.1 Licensee may upload test results and other information (hereinafter "Information") by running the Software to Futuremark's web site by using the upload function included with the Software. Licensee acknowledges that uploading of the Information is voluntary, but gives the opportunity to use the online services of Futuremark and also helps Futuremark to further develop the Software. Futuremark shall not be liable for any loss of data or damage of any kind arising from collection or use of the Information

8.2 By sending the Information Licensee assigns the rights to the Information to Futuremark. Futuremark may include the Information in statistical or other type of reports it may generate and market. Additionally, Futuremark may create online services that it provides to other businesses, which are powered by the Information. However, an individual user will not be identified from these reports and services.

DISCLAIMER OF WARRANTY AND LIMITATIONS OF LIABILITY

9.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9.2 FUTUREMARK HAS TESTED THE SOFTWARE EXTENSIVELY IN NUMBER OF DIFFERENT SETUPS, AND MOBILE DEVICES AND ALSO TESTED IT AGAINST ANY KNOWN VIRUSES, BUT YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. FUTUREMARK AND ITS AUTHORIZED DISTRIBUTORS ASSUME NO RESPONSIBILITY FOR THE ACCURACY OR APPLICATION OF OR ERRORS OR OMISSIONS IN THE SOFTWARE.

9.3 LICENSEE ACKNOWLEDGES THAT FUTUREMARK HAS NO CONTROL OVER LICENSEE'S USE OR EXPLOITATION OF THE SOFTWARE. LICENSEE THEREFORE AGREES TO INDEMNIFY AND HOLD FUTUREMARK HARMLESS AGAINST ANY COSTS, CLAIMS, DEMANDS, EXPENSES AND LIABILITIES OF WHATSOEVER NATURE BY ANY THIRD PARTY ARISING FROM SUCH USE OR EXPLOITATION.

9.4 IN NO EVENT SHALL FUTUREMARK OR ITS AUTHORIZED DISTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF FUTUREMARK OR ITS AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. FUTUREMARK AND ITS AUTHORIZED DISTRIBUTORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES OR COSTS, ARISING OUT OF, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF THE SOFTWARE OR THE MEDIA, LOSS OF DATA OR EQUIPMENT, THE COSTS OF RECOVERING THE SOFTWARE, THE MEDIA, DATA OR EQUIPMENT, THE COSTS OF RECOVERING THE SOFTWARE, THE MEDIA, DATA OR EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE, MEDIA, DATA OR EQUIPMENT OR CLAIMS BY THIRD PARTIES, OR OTHER SIMILAR COSTS.

9.5 SINCE LOCAL LEGISLATION IN SOME COUNTRIES DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; THE ABOVE LIMITATIONS OR EXCLUSIONS MAY APPLY TO YOU ONLY PARTLY OR NOT AT ALL.

9.6 IN ANY EVENT, IF ANY STATUTE IMPLIES WARRANTIES OR CONDITIONS NOT STATED IN THIS LICENSE AGREEMENT, LICENSOR'S ENTIRE LIABLITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO LICENSE THE SOFTWARE.

TERMINATION OF THE LICENSE

10.1 Either Party may terminate this Agreement with immediate effect by notice in writing in the event the other Party materially breaches any of its obligations, unless the breach is cured within the fourteen (14) day period following the notice. Licensee have also the right to terminate the use of the Software at any point of time, without any specific or implied reason. However, Licensee is not entitled to any money refund in any case.

10.2 Upon termination, Licensee shall cease all use of the Software. In addition, Licensee shall verifiably delete the Software and destroy all tangible copies of the Software and other materials related to the Software in possession or under control of Licensee.

MISCELLANEOUS

11.1 No delay by either Party in enforcing the provisions of this Agreement shall prejudice or restrict its rights nor shall any waiver of rights operate as a waiver of any subsequent breach.

11.2 If any provision of this Agreement or the application of any such provision would be invalid, void or unenforceable and/or should be held by a Court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent permissible by the applicable law.

11.3 This Agreement is made, executed and delivered in Espoo, Finland and any controversy arising hereunder or relation to this Agreement shall be governed by and construed in accordance with the laws of Finland. The parties hereto hereby agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and is strictly excluded in all proceedings.

11.4 In the event of any dispute between Licensee and Futuremark under this Agreement, the Parties agree that they shall negotiate with each other in good faith in an attempt to resolve the dispute prior to any commencement of proceedings.

11.5 All disputes arising in connection with this Agreement, its negotiations, performance, breach, existence or validity shall be determined by final arbitration in Helsinki, Finland, in accordance with the Arbitration Rules of International Chamber of Commerce or any successor or replacement legislation, which may be in force. The Parties agree to be bound by the arbitrator's decision.

However, if the Licensee is considered to have a status of a consumer, Futuremark might and is fully capable to choose another jurisdiction and forum such as forum of domicile of the Licensee. In such a case the applicable law of the proceedings will be the national trade law or, when obligatory, the consumer legislation of the said forum. This might be especially applicable to those consumers residing in the European Union.

11.6 I acknowledge that I have the authority to execute this Agreement on behalf of the Licensee and I further acknowledge that this Agreement constitutes a valid and legally binding obligation on the part of the Licensee.