`
`Apple Inc.
`iPhone SDK Agreement
`Internal Use Only; No Redistribution
`
`PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS
`CAREFULLY BEFORE USING THE SOFTWARE. THIS IS A LEGAL AGREEMENT BETWEEN
`YOU AND APPLE. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND
`CONDITIONS, CLICK THE “AGREE” BUTTON OR CHECK THE BOX DISPLAYED AT THE
`END OF THIS AGREEMENT IF YOU ARE READING THIS ON AN APPLE WEBSITE. BY
`CLICKING “AGREE”, CHECKING THE BOX OR BY DOWNLOADING, USING OR COPYING
`ANY PART OF THIS SDK, YOU ARE AGREEING ON YOUR OWN BEHALF AND/OR ON
`BEHALF OF YOUR COMPANY TO THE TERMS AND CONDITIONS STATED BELOW.
`
`IF YOU DO NOT OR CANNOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU
`CANNOT USE THIS SDK. DO NOT DOWNLOAD OR USE THIS SDK IN THAT CASE.
`
`Definitions
`1.
`Whenever capitalized in this Agreement:
`
`“Agreement” means this iPhone SDK Agreement.
`
`“App Store” means an electronic store and its storefronts branded, and owned and/or controlled
`by Apple or an affiliate of Apple.
`
`“Apple” means Apple Inc., a California corporation with its principal place of business at One
`Infinite Loop, Cupertino, California 95014, U.S.A.
`
`“Application” means one or more software programs developed by You in compliance with the
`Documentation and the Program Requirements, under Your own trademark or brand, and for
`specific use with the Apple iPhone and/or the Apple iPod touch, including bug fixes, updates,
`upgrades, modifications, enhancements, supplements to, revisions, new releases and new
`versions of such software programs.
`
`“Authorized Users” means Your employees and contractors or, if You are an educational
`institution, Your faculty and staff who (a) each have an active and valid Registered iPhone
`Developer account with Apple, (b) have a demonstrable need to know or use the SDK in order to
`develop and test Applications, and (c) to the extent such individuals will have access to Apple
`Confidential Information, each have written and binding agreements with You to protect the
`unauthorized use and disclosure of such Apple and third party confidential information.
`
`“Documentation” means any technical or other specifications or documentation that Apple may
`make available or provide to You relating to or for use in connection with the SDK.
`
`“FOSS” (Free and Open Source Software) means any software that is subject to terms that, as a
`condition of use, copying, modification or redistribution, require such software and derivative
`works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of
`making derivatives works, or to be redistributed free of charge, including without limitation
`software distributed under the GNU General Public License or GNU Lesser/Library GPL.
`
`"iPhone Developer Program License Agreement" means a separate agreement that may be
`entered into between You and Apple regarding the provisioning of test devices for Your
`Applications, and submission of Your Application for approval and digital signing by Apple, among
`other things.
`
`
` APPLE v. ACHATES
`Case No. IPR2013-00080
`Case No. IPR2013-00081
` Achates Ex. 2006
`
`SDK Agreement
`
`
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`Page 1
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`

`
`
`“Program Requirements” mean the technical, human interface, design, product category, security,
`performance, and other criteria and requirements specified by Apple, including but not limited to
`the current set of requirements set forth in Section 3.3, as they may be modified from time to time
`by Apple in accordance with this Agreement.
`
`“Published API(s)” means the Apple-documented Application Programming Interface(s) contained
`in the SDK.
`
`“SDK” (Software Development Kit) means the Documentation, software (source code and object
`code), applications, sample code, simulator, tools, libraries, APIs, data, files, and materials
`provided or made available by Apple for use by You in connection with Your Application
`development, and includes any Updates that may be provided or made available by Apple.
`
`“Term” means the period described in Section 7.
`
`“Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and
`new releases or versions of the SDK, or to any part of the SDK.
`
` “You” or “Your” means the person(s) or entity using the SDK or otherwise exercising rights under
`this Agreement. If You are entering into this Agreement on behalf of Your company or
`educational institution, “You” or “Your” refers to your company or educational institution as well.
`
`SDK Internal Use License and Restrictions
`2.
`Confidential Nature of Pre-Release SDK
`2.1
`From time to time during the Term, Apple may provide You with pre-release versions of the SDK
`that constitute Apple Confidential Information and are subject to the confidentiality obligations of
`this Agreement. Such pre-release versions of the SDK should not be relied upon to perform in the
`same manner as a final-release commercial-grade product, nor should they be used with data
`that is not sufficiently and regularly backed up. Distribution of Applications created with the SDK
`is not permitted absent a separate agreement with Apple.
`
`Permitted Uses and Restrictions
`2.2
`Subject to the terms and conditions of this Agreement, Apple hereby grants You during the Term,
`a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to:
`
`(a) Install a reasonable number of copies of the SDK on Apple-branded computers owned or
`controlled by You, to be used internally by You or Your Authorized Users for the sole purpose of
`developing or testing Applications; and
`
`(b) Make and distribute a reasonable number of copies of the Documentation to Authorized
`Users for their internal use only and for the sole purpose of developing or testing Applications.
`
`You understand that Applications developed using these SDK materials cannot be installed or
`used on the iPhone or iPod touch. Applications must be approved and signed with an Apple-
`issued certificate before they can be tested on the iPhone or iPod touch, pursuant to a separate
`iPhone Developer Program License Agreement. Apple reserves the right to approve or withhold
`approval and signing of any Application at its sole discretion. Apple shall not be responsible for
`any costs, expenses or other liabilities You may incur as a result of Your Application development
`or use of this SDK.
`
`Copies
`2.3
`You agree to retain and reproduce in full the Apple copyright, disclaimers and other proprietary
`notices (as they appear in the SDK and Documentation provided) in all copies of the SDK and
`Documentation that you are permitted to make under this Agreement.
`
`
`SDK Agreement
`
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`

`
`
`Ownership
`2.4
`Apple retains all rights, title, and interest in and to the SDK and any Updates it may make
`available to You under this Agreement. You agree to cooperate with Apple to maintain Apple's
`ownership of the SDK, and You agree to promptly provide notice of any claims relating to the
`SDK. The parties acknowledge and agree that Apple shall not acquire any ownership interest in
`or to any of Your Applications.
`
`No Other Permitted Uses
`2.5
`You agree not to rent, lease, lend, upload to or host on any website or server, sell, redistribute, or
`sublicense the SDK, in whole or in part, or to enable others to do so. You may not use the SDK
`for any purpose not expressly permitted by this Agreement. You agree not to install, use or run
`the SDK on any non-Apple-branded computer, or to enable others to do so. You may not and You
`agree not to, or to enable others to, copy (except as expressly permitted under this Agreement),
`decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt,
`or create derivative works of the SDK or any services provided by the SDK, or any part thereof
`(except as and only to the extent any foregoing restriction is prohibited by applicable law, or to the
`extent as may be permitted by licensing terms governing use of open-sourced components or
`sample code included with the SDK). You agree not to exploit any services provided by the SDK
`in any unauthorized way whatsoever, including but not limited to, by trespass or burdening
`network capacity. Any attempt to do so is a violation of the rights of Apple and its licensors of the
`SDK or services provided by the SDK. If You breach any of the foregoing restrictions, You may
`be subject to prosecution and damages. All licenses not expressly granted in this Agreement are
`reserved and no other licenses, immunity or rights, express or implied are granted by Apple, by
`implication, estoppel, or otherwise. This Agreement does not grant You any rights to use any
`trademarks, logos or service marks belonging to Apple, including but not limited to the iPhone or
`iPod word marks. If You make reference to any Apple products or technology, You agree to
`comply with the published guidelines at
`http://www.apple.com/legal/trademark/guidelinesfor3rdparties.html, as modified by Apple from
`time to time.
`
`2.6 Updates; No Support or Maintenance
`Apple may extend, enhance, or otherwise modify the SDK at any time without notice, but Apple
`shall not be obligated to provide You with any Updates to the SDK. If Updates are made available
`by Apple, the terms of this Agreement will govern such Updates, unless the Update is
`accompanied by a separate license in which case the terms of that license will govern. Apple is
`not obligated to provide any maintenance, technical or other support for the SDK. You
`acknowledge that Apple has no express or implied obligation to announce or make available any
`Updates of the SDK to anyone in the future. Should an Update be made available, it may have
`APIs, features, services or functionality that are different from those found in the SDK licensed
`hereunder.
`
`Your Obligations
`3.
`General
`3.1
`You certify to Apple and agree that:
`(a) You are of the legal age of majority in the jurisdiction in which You reside (at least 18 years of
`age in many countries) and have the right and authority to enter into this Agreement on Your own
`behalf, or if You are entering into this Agreement on behalf of Your company, organization or
`educational institution, that You have the right and authority to legally bind Your company,
`organization or educational institution to the terms and obligations of this Agreement;
`(b) All information provided to Apple by You will be current, true, accurate and complete;
`(c) You will comply with the terms of and fulfill Your obligations under this Agreement and You
`agree to monitor and be responsible for Your Authorized Users’ use of the SDK and their
`compliance with the terms of this Agreement; and
`(d) You will be solely responsible for all costs, expenses, losses and liabilities incurred, and
`activities undertaken by You and Authorized Users in connection with the SDK, Your Applications
`and Your related development efforts.
`
`SDK Agreement
`
`
`
`Achates Ex. 2006, p. 3
`Page 3
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`

`
`
`
`Use of the SDK
`3.2
`As a condition to using the SDK, You agree that:
`(a) You will only use the SDK for the purposes and in the manner expressly permitted by this
`Agreement and in accordance with all applicable laws and regulations;
`(b) You will not use the SDK for any unlawful or illegal activity, nor to develop any Application
`which would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal
`act;
`(c) Your Application will be developed in compliance with the Documentation and the Program
`Requirements, the current set of which is set forth in Section 3.3 below;
`(d) To the best of Your knowledge and belief, Your Application does not and will not violate,
`misappropriate, or infringe any copyright, patent, trademark, trade secret, rights of privacy and
`publicity, or other proprietary or legal right of any third party or of Apple; and
`(e) You will not, through use of the SDK or otherwise, create any Application or other program
`that would disable, hack or otherwise interfere with any security, digital signing, digital rights
`management, content protection, verification or authentication mechanisms implemented in or by
`the iPhone operating system software, iPod touch operating system software, this SDK, or other
`Apple software, services or technology, or enable others to do so.
`
`Program Requirements for Applications
`3.3
`Any Application developed using this SDK must comply with these criteria and requirements, as
`they may be modified by Apple from time to time:
`
`APIs and Functionality:
`
`Applications may only use Published APIs in the manner prescribed by Apple
`3.3.1
`and must not use or call any unpublished or private APIs.
`
`An Application may not itself install or launch other executable code by any
`3.3.2
`means, including without limitation through the use of a plug-in architecture, calling other
`frameworks, other APIs or otherwise. No interpreted code may be downloaded and used in
`an Application except for code that is interpreted and run by Apple's Published APIs and built-
`in interpreter(s).
`
`Without Apple’s prior written approval, an Application may not provide, unlock or
`3.3.3
`enable additional features or functionality through distribution mechanisms other than the App
`Store.
`
`An Application may write data on a device only to the Application's designated
`3.3.4
`container area, except as otherwise specified by Apple.
`
`User Interface and Data:
`
`Applications must comply with the Human Interface Guidelines and other
`3.3.5
`Documentation provided by Apple.
`
`Any form of user or device data collection, or image, picture or voice capture or
`3.3.6
`recording performed by the Application (collectively “Recordings”), and any form of user data,
`content or information processing, maintenance, uploading, syncing, or transmission
`performed by the Application (collectively "Transmissions") must comply with all applicable
`privacy laws and regulations as well as any Apple program requirements related to such
`aspects, including but not limited to any notice or consent requirements. In particular, a
`reasonably conspicuous visual indicator must be displayed to the user as part of the
`Application to indicate that a Recording is taking place.
`
`
`SDK Agreement
`
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`

`
`
`Location Services and User Privacy:
`
`For Applications that use location-based APIs or that collect, transmit, maintain,
`3.3.7
`process, share, disclose or otherwise use a user's personal information:
`
` -
`
` You and the Application must comply with all applicable privacy and data collection laws
`and regulations with respect to any collection, transmission, maintenance, processing, use,
`etc. of the user's location data or personal information by the Application.
`
` -
`
` Applications may not be designed or marketed for the purpose of harassing, abusing,
`stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and
`publicity) of others.
`
` -
`
` For Applications that use location-based APIs, such Applications may not be designed or
`marketed for real time route guidance; automatic or autonomous control of vehicles, aircraft,
`or other mechanical devices; dispatch or fleet management; or emergency or life-saving
`purposes.
`
`- Applications may not use any robot, spider, site search or other retrieval application or
`device to scrape, retrieve or index services provided by Apple or its licensors, or to collect
`information about users for any unauthorized purpose.
`
`Applications that offer location-based services or functionality must notify and
`3.3.8
`obtain consent from an individual before his or her location data is being collected,
`transmitted or otherwise used by the Application.
`
`Applications must not disable, override or otherwise interfere with any Apple-
`3.3.9
`implemented system alerts, warnings, display panels, consent panels and the like intended to
`notify the user that the user's location data is being collected, transmitted, maintained,
`processed or used, or intended to obtain consent for such use. If consent is withheld or
`withdrawn, Applications may not collect, transmit, maintain, process or utilize the user's
`location data.
`
`Content and Materials:
`
`Any master recordings and musical compositions embodied in Your Application
`3.3.10
`must be wholly-owned by You or licensed to You on a fully paid-up basis and in a manner
`that will not require the payment of any fees, royalties and/or sums by Apple to You or any
`third party. In addition, if Your Application will be distributed outside of the United States, any
`master recordings and musical compositions embodied in Your Application (a) must not fall
`within the repertoire of any mechanical or performing/communication rights collecting or
`licensing organization now or in the future and (b) if licensed, must be exclusively licensed to
`You for Your Application by each applicable copyright owner.
`
`If Your Application includes or will include any other content, You must either
`3.3.11
`own all such content or have permission from the content owner to use it in Your Application.
`
`Applications must not contain any obscene, pornographic, offensive or
`3.3.12
`defamatory content or materials of any kind (text, graphics, images, photographs, etc.), or
`other content or materials that in Apple’s reasonable judgment may be found objectionable by
`iPhone or iPod touch users.
`
`Applications must not contain any malware, malicious or harmful code, program,
`3.3.13
`or other internal component (e.g. computer viruses, trojan horses, “backdoors”) which could
`damage, destroy, or adversely affect other software, firmware, hardware, data, systems,
`services, or networks.
`
`
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`

`

`
`
`
`If Your Application includes any FOSS, You agree to comply with all applicable
`3.3.14
`FOSS licensing terms. You also agree not to use any FOSS in the development of Your
`Application in such a way that would cause the non-FOSS portions of the SDK to be subject
`to any FOSS licensing terms or obligations.
`
`Cellular Network:
`
`If an Application requires or will have access to the cellular network, then
`3.3.15
`additionally such Application:
`
` -
`
` Must comply with Apple's best practices and other guidelines on how Applications should
`access and use the cellular network;
`
` -
`
` Must not in Apple's reasonable judgment excessively use or unduly burden network
`capacity or bandwidth;
`
` May not have Voice over Internet Protocol (VoIP) functionality using the cellular network.
`
` -
`
`Changes to Program Requirements or Terms
`4.
`Apple may change the Program Requirements or the terms of this Agreement at any time. In
`order to continue using the SDK, You must accept and agree to the new Program Requirements
`and/or new terms of this Agreement. If You do not agree to new Program Requirements or new
`terms, Your use of the SDK will be suspended or terminated by Apple. You agree that Your
`acceptance of such new Agreement terms or Program Requirements may be signified
`electronically, including without limitation, by Your checking a box or clicking on an “agree” or
`similar button.
`
`Confidentiality
`5.
`Information Deemed Apple Confidential
`5.1
`You agree that all pre-release versions of the SDK (including pre-release Documentation) will be
`deemed “Apple Confidential Information”. Notwithstanding the foregoing, Apple Confidential
`Information will not include: (i) information that is generally and legitimately available to the public
`through no fault or breach of Yours, (ii) information that is generally made available to the public
`by Apple, (iii) information that is independently developed by You without the use of any Apple
`Confidential Information, (iv) information that was rightfully obtained from a third party who had
`the right to transfer or disclose it to You without limitation, or (v) any FOSS included in the Apple
`Software and accompanied by licensing terms that do not impose confidentiality obligations on
`the use or disclosure of such FOSS.
`
`Obligations Regarding Apple Confidential Information
`5.2
`You agree to protect Apple Confidential Information using at least the same degree of care that
`You use to protect Your own confidential information of similar importance, but no less than a
`reasonable degree of care. You agree to use Apple Confidential Information solely for the
`purpose of exercising Your rights and performing Your obligations under this Agreement and
`agree not to use Apple Confidential Information for any other purpose, for Your own or any third
`party’s benefit, without Apple's prior written consent. You further agree not to disclose or
`disseminate Apple Confidential Information to anyone other than: (i) those of Your employees and
`contractors, or those of Your faculty and staff if You are an educational institution, who have a
`need to know and who are bound by a written agreement that prohibits unauthorized use or
`disclosure of the Apple Confidential Information; or (ii) except as otherwise agreed or permitted in
`writing by Apple. You may disclose Apple Confidential Information to the extent required by law,
`provided that You take reasonable steps to notify Apple of such requirement before disclosing the
`Apple Confidential Information and to obtain protective treatment of the Apple Confidential
`Information. You acknowledge that damages for improper disclosure of Apple Confidential
`
`SDK Agreement
`
`
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`Page 6
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`

`
`
`Information may be irreparable; therefore, Apple is entitled to seek equitable relief, including
`injunction and preliminary injunction, in addition to all other remedies.
`
`Information Submitted to Apple Not Deemed Confidential
`5.3
`Apple works with many application and software developers and some of their products may be
`similar to or compete with Your Applications. Apple may also be developing its own similar or
`competing applications and products or may decide to do so in the future. To avoid potential
`misunderstandings, Apple cannot agree, and expressly disclaims, any confidentiality obligations
`or use restrictions, express or implied, with respect to any information that You may provide in
`connection with this Agreement, including information about Your Application (such disclosures
`will be referred to as “Licensee Disclosures”). You agree that any such Licensee Disclosures will
`be non-confidential. Apple will be free to use and disclose any Licensee Disclosures on an
`unrestricted basis without notifying or compensating You. You release Apple from all liability and
`obligations that may arise from the receipt, review, use, or disclosure of any portion of any
`Licensee Disclosures. Any physical materials You submit to Apple will become Apple property
`and Apple will have no obligation to return those materials to You or to certify their destruction.
`
`Press Releases and Other Publicity
`5.4
`You may not issue any press releases or make any other public statements regarding this
`Agreement, its terms and conditions, or the relationship of the parties without Apple’s express
`prior written approval, which may be withheld at Apple's discretion.
`
`Indemnification
`6.
`To the extent permitted by law, You agree to indemnify, defend and hold harmless Apple, its
`directors, officers, employees, independent contractors and agents (each an "Apple Indemnified
`Party") from any and all claims, losses, liabilities, damages, expenses and costs (including
`without limitation attorneys fees and court costs) (collectively "Losses") incurred by an Apple
`Indemnified Party as a result of Your breach of this Agreement, a breach of any certification,
`covenant, representation or warranty made by You in this Agreement, any claims that Your
`Applications violate or infringe any third party intellectual property or proprietary rights, or
`otherwise related to or arising from Your use of the SDK, Your Application(s) or Your
`development of Applications.
`
`You acknowledge that the SDK is not intended for use in the development of Applications in
`which errors or inaccuracies in the content, data or information provided by the Application or the
`failure of the Application could lead to death, personal injury, or severe physical or environmental
`damage, and, to the extent permitted by law, You hereby agree to indemnify, defend and hold
`harmless each Apple Indemnified Party from any Losses incurred by such Apple Indemnified
`Party by reason of any such use.
`
`In no event may You enter into any settlement or like agreement with a third party that affects
`Apple's rights or binds Apple in any way, without the prior written consent of Apple.
`
`Term and Termination
`7.
`Term. The term of this Agreement shall commence upon Your installation or use of this
`7.1
`SDK and will terminate automatically without notice from Apple upon the first to occur of: (a) Your
`installation or use of a subsequent version of the SDK released by Apple; or (b) termination as set
`forth in Section 7.2 below.
`
`Termination. This Agreement and all rights granted by Apple hereunder will
`7.2
`automatically terminate without notice from Apple if You or any of Your Authorized Users fail to
`comply with any term(s) of this Agreement. Apple may also terminate this Agreement, or
`suspend Your rights to use the SDK, if You fail to accept any new Program Requirements or
`Agreement terms as described in Section 4. Either party may terminate this Agreement for its
`convenience, for any reason or no reason, effective 30 days after providing the other party with
`written notice of its intent to terminate.
`
`
`SDK Agreement
`
`
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`

`
`
`Effect of Termination
`7.3
`Upon the termination of this Agreement for any reason, You agree to immediately cease all use of
`the SDK and erase and destroy all copies, full or partial, of the SDK and all copies of Apple
`Confidential Information in Your and Your Authorized Users' possession or control. At Apple’s
`request, You agree to provide written certification of such destruction to Apple. The provisions of
`Sections 1, 2.4, 2.5, 3.1(d), 3.2 (d), 3.2(e), 5, 6, 7, 8, 9 and 10 will survive any termination of this
`Agreement. Apple will not be liable for compensation, indemnity, or damages of any sort as a
`result of terminating this Agreement in accordance with its terms, and termination of this
`Agreement will be without prejudice to any other right or remedy Apple may have, now or in the
`future.
`
`NO WARRANTY
`8.
`The SDK may contain inaccuracies or errors that could cause failures or loss of data and it may
`be incomplete. Apple may, through the Apple Software, provide or make available services
`(collectively the “Services”). Apple and its licensors reserve the right to change, suspend, remove,
`or disable access to any Services at any time without notice. In no event will Apple be liable for
`the removal of or disabling of access to any such Services. Apple may also impose limits on the
`use of or access to certain Services, in any case and without notice or liability. YOU EXPRESSLY
`ACKNOWLEDGE AND AGREE THAT USE OF THE SDK AND SERVICES IS AT YOUR SOLE
`RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE,
`ACCURACY AND EFFORT IS WITH YOU. THE SDK AND SERVICES ARE PROVIDED "AS IS"
`AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND
`APPLE AND APPLE'S LICENSORS (COLLECTIVELY REFERRED TO AS "APPLE" FOR THE
`PURPOSES OF SECTIONS 8 AND 9) HEREBY DISCLAIM ALL WARRANTIES AND
`CONDITIONS WITH RESPECT TO THE SDK AND SERVICES, EITHER EXPRESS, IMPLIED
`OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND
`CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
`PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD
`PARTY RIGHTS. APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR
`ENJOYMENT OF THE SDK, THAT THE SDK OR SERVICES WILL MEET YOUR
`REQUIREMENTS, THAT THE OPERATION OF THE SDK OR SERVICES WILL BE
`UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SDK OR SERVICES WILL BE
`CORRECTED, OR THAT THE SDK OR SERVICES WILL BE COMPATIBLE WITH FUTURE
`APPLE PRODUCTS OR SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE
`GIVEN BY APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE WILL CREATE A
`WARRANTY. SHOULD THE SDK OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE
`ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. Location data
`provided by any Services is for basic navigational purposes only and is not intended to be relied
`upon in situations where precise location information is needed or where erroneous, inaccurate or
`incomplete location data may lead to death, personal injury, property or environmental damage.
`Neither Apple nor any of its licensors guarantees the availability, accuracy, completeness,
`reliability, or timeliness of location data or any other data displayed by any Services.
`
`LIMITATION OF LIABILITY
`9.
`TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL APPLE BE LIABLE FOR
`PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR
`PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
`LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER
`COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS
`AGREEMENT, YOUR USE OR INABILITY TO USE THE SDK OR SERVICES, OR YOUR
`DEVELOPMENT EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OF
`CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR
`OTHERWISE, EVEN IF APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
`DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
`REMEDY. IN NO EVENT SHALL APPLE’S TOTAL LIABILITY TO YOU UNDER THIS
`
`SDK Agreement
`
`
`
`Achates Ex. 2006, p. 8
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`AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE
`LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY
`DOLLARS ($50.00).
`
`10. General Legal Terms
`Third Party Notices. Portions of the SDK utilize or include third party software and other
`10.1
`copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are
`contained in the electronic documentation for the SDK, and Your use of such material is governed
`by their respective terms.
`
`10.2 Consent to Collection and Use of Non-Personal Data. You agree that Apple and its
`subsidiaries may collect and use technical and related information, including but not limited to
`information about Your Applications, computer, system software, other software and peripherals,
`that is gathered periodically to facilitate the provision of software updates and other services to
`You (if any) related to the SDK, and to verify compliance with the terms of this Agreement. Apple
`may use this information, as long as it is in a form that does not personally identify You, to
`improve the SDK, our products or to provide services or technologies to You and our customers.
`
`10.3 Assignment. This Agreement may not be assigned, nor may any of Your obligations
`under this Agreement be delegated, in whole or in part, by You by operation of law, merger, or
`any other means without Apple’s express prior written consent and any attempted assignment
`without such consent will be null and void.
`
`10.4 Relationship of Parties. This Agreement will not be construed as creating an agency,
`partnership, joint venture, fiduciary duty, or any other form of legal association between You and
`Apple, and You will not represent to the contrary, whether expressly, by implication, appearance
`or otherwise. This Agreement is not for the benefit of any third parties.
`
`Independent Development. Nothing in this Agreement will impair Apple's right to
`10.5
`develop, acquire, license, market, promote, or distribute products or technologies that perform the
`same or similar functions as, or otherwise compete with, Your Applications or any other products
`or