Terms & Conditions
Last updated date: November 29, 2022
These Terms and Conditions (“Agreement”) are a legal agreement between you (a legal entity, referred herein as “you”, “your”, or “Licensee”) and Introvoke d/b/a Sequel.io (“Licensor”) for the Licensor’s software (including mobile applications as applicable) that accompanies this Agreement or that you download or access after agreeing to this Agreement, which may also include associated media, printed materials, and “online” or electronic documentation (collectively the “Software”). Software shall also include all related documentation, and updates and upgrades that replace or supplement the Software and are not distributed with separate license terms.
BY CLICKING THE ACCEPT BUTTON BELOW, OR OTHERWISE USING THE SOFTWARE (DIRECTLY OR THROUGH HARDWARE DEVICES) YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK THE ACCEPT BUTTON, INSTALL, DOWNLOAD, OR USE THE SOFTWARE. IF YOU CLICK THE ACCEPT BUTTON OR INSTALL, DOWNLOAD OR USE THE SOFTWARE, THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE FULLY ACCEPTED BY YOU. If you agree to these terms on behalf of any entity or organization, you hereby represent to Licensor that you are authorized to accept these terms on its behalf.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” OR “CANCEL” BUTTON AND DO NOT ACCESS OR USE THE SOFTWARE.
1. SOFTWARE USE.
Upon payment of the applicable fees set forth in the Licensor’s purchase order document, if any, Licensor grants you the following rights provided that you comply with all terms and conditions of this Agreement:
We offer our software in different formats like our subscription software or through mobile applications. Based on the format, certain terms and conditions apply and are described in this section.
a. Licensor Hosted Software. If Licensor hosts the Software (“Subscription”) as set forth in the Licensor order document, Licensor grants to Licensee, the non-assignable, nontransferable, non-sublicensable, and nonexclusive right to access the Subscription and use the Subscription and the applicable documentation only as authorized in this Agreement. The Subscription will not be provided to you on any other form of media and will not be installed on any servers or other computer equipment owned or otherwise controlled by you. During the Subscription term, Licensor shall provide you with access to the latest supported version of the hosted Subscription, to be accessed and used by you through the use of the internet. If applicable, Licensor may provide an administrator user account for secure administrator access and provide this administrator user the necessary tools to create other users for access to the Subscription. You agree that you have elected to access the Software through a Subscription and that this Agreement confers no right to convert the Subscription to a license without Licensor’s prior written consent and applicable fee.
b. Software Developer Kit (SDK); Application Programming Interface (API). If Licensee has elected to access or use Licensor’s SDK or API as indicated in the Licensor order document, in addition to Sections 1 – 25, Licensee is subject to the terms and conditions of Section 26 through 34 of this Agreement.
c. Mobile Applications. If Licensee accesses or uses any of Licensor’s mobile applications (which are deemed Software under this Agreement), Licensor grants you a limited, non-transferable, revocable license to use the object code of Software on any mobile device that you own or control that the Software is authorized to operate on (as determined by Licensor) and as permitted by this Section 1(c) of the Agreement (the “License”). The Software is licensed, not sold, to you for use only under the terms of this Agreement. Licensor reserves all rights, title and interest not expressly granted to you. This License does not allow you to use the Software on a device that you do not own or are authorized to control. The terms of the License will govern any upgrades (if any) provided by Licensor that replace or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. TRIAL LICENSES.
We may offer our customers limited access to our software to try it out before committing to a purchase. In such cases, these terms describe the limited access is for a trial only, without you having to pay fees, and such trial access will not come with warranties as our paid access offerings may have.
a. General. If made available by Licensor in its sole discretion, the Software may be activated for a limited period with no-cost evaluation software key (“Software License Key(s)”).
b. Evaluation License. If you activate the Software with an evaluation Software License Key (“Evaluation Product”) you may use the Evaluation Product for the period of time set forth in the applicable order document (or such other period as agreed in writing by Licensor) (the “Trial Period”) only to evaluate the suitability of the Evaluation Product for licensing on a for-fee basis.
c. Trial Periods. If the Software was provided to you at no charge on a trial or evaluation basis, then the Software may be used only for the Trial Period, unless you purchase a further license to the Software at the end of the Trial Period.
d. Software Limited Full Functionality for Trial Period. If you use the Software for any Trial Period, Licensor will grant you full functionality to such Software for the period of time set forth in the applicable order document (or such other period as agreed to in writing by Licensor). After the initial portion of the Trial Period where full functionality is available, per the applicable order document, you acknowledge and agree that functionality will be reduced to a limited functionality version only until you purchase a paid license for the Software.
e. THE EVALUATION PRODUCT IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT THROUGH AND AFTER THE TRIAL PERIOD.
f. No Support. Licensor has no duty to provide support to you during your use of the Evaluation Product.
3. RESERVATION OF RIGHTS AND OWNERSHIP.
We have put a lot of time, investment and know-how into the development of our software. This section acknowledges that the software is protected by intellectual property laws and regulations, and belongs to Introvoke and its licensors.
The Software is not sold and may only be used under the terms of this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. Licensor or its suppliers own the title, copyright, and other intellectual property rights in the Software. Except as expressly stated herein, Licensor and its suppliers reserve all right, title and interest in the Software and all associated copyrights, trademarks, and other intellectual property rights therein. The Agreement is limited to the intellectual property rights of Licensor and its suppliers in the Software and does not include any rights to other intellectual property.
4. FEES AND PAYMENT
Please review this section closely as it details the applicable fees due and payment terms. The applicable order document will also set forth any additional payment terms and the specific fees due, where applicable.
You will pay Licensor the undisputed applicable fees set forth in the applicable order document (the “Fees”).
On a monthly or quarterly basis, as further set forth in the applicable order document, Licensor will issue you with a detailed and itemized invoice of all Fees. Except as otherwise set forth in the applicable order document, you will pay to Licensor (a) all Fees issued on a proper invoice that are not disputed in good faith on an upfront calendar monthly basis; and (b) all overage Fees on a monthly basis, in arrears for the previous calendar month. Our standard overage fee is $1 per user over the max attendees per session unless stated specifically in your Agreement. Payment of support fees will be due at the time of purchase, in advance, unless otherwise set forth in the applicable order document. You will pay Licensor all amounts not subject to a good faith dispute due under this Agreement within thirty (30) days after the date of the invoice therefor. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per year or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date Licensor provides you with written notice of the same, then Licensor may suspend all services and access associated with all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.
You will be responsible for payment of all taxes (other than taxes based on Licensor’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of Fees to Licensor under this Agreement or the provision of the Software hereunder. You will make all payments of Fees to Licensor free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Licensor will be your sole responsibility, and you will provide Licensor with official receipts issued by the appropriate taxing authority, or such other evidence as Licensor may reasonably request, to establish that such taxes have been paid.
5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY.
We offer you access to use our software in the format agreed upon in Section 1 above. We do not provide access to proprietary source code, and we do not allow our customers to try and modify or access such source code as that could negatively affect yours and our other customers’ experiences.
You may not reverse engineer, decompile, or disassemble the Software by any means whatsoever, or alter, modify, enhance, or create a derivative work of the Software, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any free or open sourced components included with the Software. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the software.
6. NO RENTAL/COMMERCIAL HOSTING.
We expect that your organization will obtain value from the use of our software. The fees you pay for access are for your access only. Except as expressly set forth below in the limited context of private label usage, you are not permitted to allow third parties access.
Except as expressly set forth herein or in Licensor’s order document for authorized dealers, and pursuant to Section 1(a) for hosted Software, you may not rent, lease, lend, sublicense or provide hosting services with the Software for third parties. You may not use the Software to provide commercial services to third-parties except as expressly stated herein and in the related documentation of the Software.
In the event that you are on OEM customer of Licensor, Licensor will permit you to private-label the Software with your name and/or logo for the sole purpose of making the OEM-version of the Software available to your customers; provided that, such customers must be bound by terms materially similar to those set forth in this Agreement. You understand and acknowledge that you shall be solely and primarily liable and responsible for the OEM-branded Software, including for your trademark and/or logo included therein, and you shall defend, indemnify and hold Licensor harmless from and against any and all claims, damages, losses, suits and liabilities (including reasonable attorneys’ fees and court costs) that arise out of or result from your use, distribution or sale of any OEM-branded Software. You shall not grant any rights, licenses or make any representations or warranties with respect to the OEM-branded Software, in addition to those set forth herein.
7. CONSENT TO USE OF DATA; USE OF TRADEMARKS.
In order to make our software useful to you, we must be able to collect, process and use data provided by you through the software, and from other metadata derived from your use of our software. In addition to the descriptions in our privacy policy, this section highlights various uses and types of data we may use in connection with the software.
a. Software Use Generally. You agree that Licensor and its affiliates may collect and use technical and other information gathered during your use of the Software, or as part of the product support services provided to you, if any, related to the Software. Licensor may use this information to improve its products, to provide customized services or technologies, deliver metrics or otherwise publish case studies, and will not disclose this information except in accordance with our Privacy Policy located https://www.sequel.io/privacy-policy.
b. Mobile Applications. In addition, if you have elected to download and use Software on your mobile devices: you agree that Licensor may collect and use data and information from your devices through the use of the Software, such information can include but is not limited to technical information about your devices, its operating system and application software, location/GPS information, device usage, camera operation and pictures, video, phone, SMS/text usage, website usage, other related services associated to the business of Licensor in connection with your use of the Software. Licensor may use this information in connection with its business in compliance with its posted Privacy Policy located https://www.sequel.io/privacy-policy. The Software communicates via the Internet with Licensor servers. Based on your mobile data plan with your carrier, standard data transmission rates may apply. Licensor may make routine software updates without informing you to keep the Software working properly. For you to access and use certain features of the Software, you may be requested to share GPS information from your device. The Software may collect location information in processes executing in the background of your device to support the functionalities and features of the Software, including camera and location based functions. Note, that continued use of camera and GPS running in the background can decrease battery life. Upon first use, the Software may ask for your permission to collect user information, use of the camera on your device and on the related Licensor devices as applicable, and location information and upon acceptance, you can start using the Software. Certain mobile operating systems have options to restrict the collection of certain location and usage information. In the event that you have those options enabled, you may restrict certain functionality of the Software. If you wish to stop sharing information required for the Software to function, uninstall the Software at any time from your devices pursuant to their instructions.
c. API. You acknowledge and agree that through Licensor’s provision of the API component of the Software, Licensor may collect and use certain of your location-based data, including to provide the Software and to improve Licensor’s Software and products, as further described in Licensor’s Privacy Policy located https://www.sequel.io/privacy-policy.
d. Branding and Trademarks. Subject to the terms and conditions of this Agreement, you grant to Licensor a nonexclusive, non-transferable (except in accordance with Section 12), revocable, worldwide, royalty-free, fully paid up license (without the right to grant sublicenses) to use and reproduce your trademarks, service marks, or other names or identifiers provided by the other party (the “Marks”) in connection with distributing, marketing, and promoting Software and Licensor’s services, including in Licensor’s marketing materials and on its website. No other rights in the Marks are granted other than those expressly granted in this subsection. You will provide Licensor with samples ofall products and materials that your Marks will be included within or embedded on prior to their public use and distribution, in addition to samples and copies of your Marks. At your reasonable request, Licensor will modify or discontinue any use of your Marks if you determine that such use does not comply with the Mark owner’s then-current trademark usage policies and guidelines. The use by Licensor of your Marks in connection with this Agreement shall not create any right, title or interest, in or to the use of such Marks and all such goodwill associated with your Marks will inure to the benefit of you.
e. Feedback. You hereby grant to Licensor a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all any ideas, suggestions, documents, and/or proposals made by you to Licensor that are directly and solely related to the Software or Licensor’s business, products, or services, including without limitation through suggestion, feedback, wiki, forum or similar pages, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Software; provided that in no event shall the foregoing license be deemed to include any feedback related to your Confidential Information.
8. TERMINATION.
Generally, this agreement is active for the duration of use as set forth on the ordering document; provided, however, this agreement may expire or terminate in other circumstances as set forth below.
This Agreement is effective until terminated. If applicable, the order document agreed to by the parties sets forth the period you are allowed to access and use the Software. Your rights under this Agreement will terminate immediately and automatically if you fail to comply with any of the terms and conditions of this Agreement. Licensor may terminate this Agreement upon notice to you and upon the notice of discontinuance of the Software or Licensor’s recommendation for users to upgrade to newer software. Promptly upon termination, you must cease all use of the Software, destroy all copies of the Software in your possession or control, and, upon request of Licensor, certify such destruction. Licensor’s termination of this Agreement will not limit any of Licensor’s other rights or remedies at law or in equity.
9. ADDITIONAL SOFTWARE/SERVICES.
We update our software regularly through software updates, add-ons and new offerings. This section describes that such updates are subject to this agreement.
This Agreement applies to updates, supplements, add-on components, or internet-based services components, of the Software that Licensor may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, or internet-based services component. Licensor reserves the right to discontinue any internet-based services provided to you or made available to you through the use of the Software. If Licensor provides Licensee access to any application programming interface or software development kit, Licensee acknowledges and agrees to be bound by those additional terms and conditions that may be included with such software tools.
10. UPGRADES.
Significant upgrades of the software may replace older versions, for which you may not have access to such earlier versions after the upgrade.
To use Software identified as an upgrade, you must first be licensed for the Software identified by Licensor as eligible for the upgrade. Except as otherwise provided in writing, after upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility. Certain Software upgrades or in-app offers may require you to pay additional license fees or service fees in order to receive such upgrade.
11. SUPPORT SERVICES NOT INCLUDED; LICENSED PROFESSIONAL.
We may offer certain support services, but unless you pay for premium services, such support is in our discretion.
Licensor is not required to provide support services under this Agreement, but may do so at its sole discretion. This Agreement does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Licensor at any time in the future. Furthermore, Licensor may offer support services separately, and offer such services for a fee or no cost. Any supplemental software code or related materials that Licensor provides to you as part of any support services are to be considered part of the Software and are subject to the terms and conditions of this Agreement. Except for expressly designated consumer products by Licensor, you represent, warrant and covenant that you are a licensed professional and understand how to use and upgrade Software and the applicable hardware and software systems that Software interfaces, and take sole responsibility with the installation and upgrade of such systems. If you are unsure how to install, use or access Licensor products, hardware or this Software, please contact us below and we will recommend an independent, third party that may assist you with the foregoing. If you install the Software or activate such Software on behalf of an end user, individual, or entity, you represent and warrant that you shall provide a copy of this Agreement to such individual or entity. Nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
12. EXPORT RESTRICTIONS.
You may use the software within the United States of America, or any other lawful jurisdiction set forth in the applicable ordering document. You may not export the software to other countries, and not in violation in U.S. laws and regulations that restrict exportation of software.
You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. Neither party may use, export, import, or transfer the Software except as authorized by applicable laws. In particular, but without limitation, the Software may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. Each party represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties. Neither party will use the Software for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Each party acknowledges and agrees that products, services or technology provided by Licensor are subject to the export control laws and regulations of the United States. Each party shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Licensor products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13. DISCLAIMER OF WARRANTIES.
We cannot guarantee that software will operate without errors and we do not offer such warranties. In the U.S., we must display these disclaimers in a different format (like all CAPS) as required by consumer protection regulations and uniform commercial code. Further, we do not monitor our software that uses cameras for the most part, so this section describes that we are not a monitoring and not a security company.
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT:
a. USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK AND THE SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY;
b. NEITHER LICENSOR NOR ITS SUPPLIERS WARRANT THAT THE SOFTWARE ARE SUITABLE FOR LICENSEE’S USE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY LICENSEE THROUGH THE SOFTWARE WILL MEET LICENSEE’S EXPECTATIONS, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED;
c. NEITHER LICENSOR NOR ITS SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; LICENSOR DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE;
d. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED AS PART OF OR THROUGH THE SOFTWARE IS DONE AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S ELECTRONIC SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND
e. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND NO USE OF ANY PORTION OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
f. Disclaimers Regarding Cameras. Cameras may be compromised or circumvented. Any limited warranties that may be included with Licensor products related to the Software do not cover any damage to material or equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation.
g. Not an Insurer. You acknowledge that Licensor is not an insurer and that you assume all risk of loss to person and property within and upon your premises or within your control. Licensor does not guarantee nor represent that no loss or injury to person or property will occur with the use of the Software and related products. Licensor is not assuming liability and therefore shall not be liable to you for any loss or damage to person or property as a result of any cause whatsoever, regardless of whether such loss or damage was caused by or contributed to by Licensor or its employees’ performance or failure to perform any obligation under this Agreement. In the event of any loss or injury to any person or property, you agree to look exclusively to third parties and your insurer to recover damages. You release Licensor from any claims for contribution, indemnity, or subrogation.
h. No Active Monitoring. You acknowledge that signals transmitted between your devices, Software and premises may not be actively monitored by Licensor, and Licensor does not assume any responsibility for the manner in which such signals are received or not received. You acknowledge that signals which are transmitted through the Internet, over telephone lines, wire, air waves, cellular, radio, internet, VOIP, or other modes of communication pass through communication networks wholly beyond the control of Licensor and are not maintained by Licensor, and Licensor shall not be responsible for any failure which prevents transmission signals from reaching any device or monitoring service or damages arising therefrom, or for data corruption, theft or viruses to your devices and computers if connected to an Licensor equipment or devices.
14. INDEMNIFICATION; INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
In certain circumstances, we will protect you from third party law suits if it relates to our software. In turn, we ask that you protect us from any third party law suits if they arise out of any data that you provide us. For example, if you provide us with data that you do not have rights to, we ask that you protect us from any suits that may arise from such access. Generally, indemnities should be offered by the party that has control over the object of the indemnity, and protect the party that does not have access or control.
a. Indemnification Against Liability for Infringement. Licensor shall indemnify you against liabilities, claims and legal costs paid to or for the benefit of a third party arising from any third party claim or suit alleging that the Software infringes: (i) any copyright; or (ii) the trade secret or trademark rights of any third party. You shall promptly notify Licensor in writing of any such third party claim. Licensor shall be entitled to have sole control over the defense and settlement of such claim.
b. Limitations on Indemnification. Licensor shall have no liability for, and shall not indemnify you against, any infringement claim resulting from: (i) modification of any Software; (ii) combination of any Software with hardware, software or other intellectual property provided by anyone other than Licensor; (iii) use of a superseded or altered release of some or all of the Software or any modification thereof furnished under this Agreement including, but not limited to, your failure to use corrections, fixes, or enhancements made available by Licensor; or (iv) use of any Software in any manner not expressly contemplated hereunder.
c. Repair or Replacement of Infringing Software. In the event of a third-party infringement claim, Licensor shall, at its sole election and expense: (i) procure for you the right to continue to use the Software pursuant to this Agreement; (ii) replace or modify the Software to make it non-infringing while still complying with the terms of this Agreement; or (iii) if none of the above options is reasonably available, refund the license fees associated with the infringing portion of the Software, minus depreciation based on a three-year useful life.
d. Applicability to Third Party Products. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNIFICATION OR REPLACEMENT COVENANTS OF ANY KIND WITH RESPECT TO THIRD PARTY PRODUCTS, WHICH MAY BE EMBEDDED, LINKED OR SUPPLIED ALONGSIDE SOFTWARE. Licensor’s sole responsibility as to Third Party Products is to pass through any intellectual property warranties, indemnification and replacement provisions that Licensor receives from the vendors or suppliers of such Third Party Products and which Licensor is allowed to pass on. “Third Party Product” means application software products provided by third party vendors, including operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software. Licensee represents, warrants and covenants that it shall comply with any and all requirements and conditions of any Third Party Products.
e. Exclusive Remedy. EXCEPT AS OTHERWISE PROVIDED HEREIN, SECTIONS 14(A) THROUGH 14(D) STATE LICENSOR’S AND ITS THIRD PARTY SUPPLIERS’ ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
f. Indemnification by Licensee. Licensee shall fully indemnify and hold harmless Licensor, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest (each a “Licensor Indemnitee”) from, defend Licensor Indemnitee against, pay any judgments awarded against Licensor Indemnitee, and pay all of Licensee’s and Licensor Indemnitee’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on (i) Licensee’s improper or misuse of the Software (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (ii) Licensee’s breach of this Agreement; (iii) any acts or omissions by a Software user through Licensee’s access to the Software; (iv) any breach of this Agreement by Licensee; (v) Licensor’s compliance with Licensee’s instructions; (vi) Licensor’s use of trademarks, data, content or other materials supplied by Licensee; (vii) Licensee’s installation or activation of Software on behalf of any third party; or (viii) any breach of applicable laws or regulations by Licensee.
15. OPEN SOURCE DISCLOSURE.
Open source software helps to speed up the development of software (e.g., we do not want to recreate the wheel). Open source also helps to keep the cost of our software lower. All open source software has additional sets of terms and conditions. We will provide you a list of such terms and conditions upon your request, or as set forth in our documentation files.
The Software may contain free or open source software, and if so, licenses that govern the use and implementation of such open source software shall be set forth in the ‘readme.txt’ (or similar file) included with the Software or accessible through the Software (e.g., an About or Information screen), or as otherwise set forth in the applicable documentation. By accepting the terms of this Agreement, you are accepting the terms of the open source license agreements, the link(s) for which are provided in the associated file or documentation, that govern the use of such open source software, including all disclaimers of warranty and limitations of liability set forth therein. Any open source software governed by open source software licenses shipped with, alongside or embedded in Software is not included in the definition of Software.
16. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.
We strive to provide you with the best software experience possible. In order to do that, and in order to ensure we can weather the ups and downs of running a business, we limit our overall liability in each contract that we enter into. These limitations means that we will not be responsible for certain types of damages that could arise and any liability that we do have will be limited to a certain amount. As the warranty disclaimers above, we are required to state these limitations in a different format, which is why the terms are all capitalized.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER, AND EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. LIMITATION OF LIABILITY AND REMEDIES.
The summary above in Section 16 applies to this section too.
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this Agreement and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Licensor) shall be limited to the greater of $50 and the actual, direct damages up to the amount actually paid by you for the Software. The foregoing limitations, exclusions and disclaimers (including Sections 13, 14, 15, and 16) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
18. U.S. GOVERNMENT LICENSE RIGHTS.
Our government can claim certain ownership of software if it’s paid for by the government and designed for a specific government purpose. Our software is designed for “off the shelf” use, and not specific for the government or military application. This section instructs any government users as such.
The Software licensed under this Agreement are “commercial computer software” as the term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors.
19. APPLICABLE LAW.
We are located in California, and our software is designed based on the laws and regulations of the State of California. As such, this agreement is formed under such laws, and certain other laws do not apply.
This Agreement will be governed by the laws of the State of California, of the United States of America, without regard to its choice of law principles, as applied to agreements entered into and to be performed entirely in the State of California. Unless expressly waived by Licensor in writing for the particular instance or contrary to local law, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the California state and federal courts having within their jurisdiction in San Diego County. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by California or federal law. The parties agree that this Agreement is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of any Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (UCITA), or any references to the United National Convention on Contracts for the International Sale of Goods.
20. ENTIRE AGREEMENT; SEVERABILITY.
Our agreement is based on the terms and conditions set forth in this document and the applicable ordering document we provide you. Your acknowledgment documents or emails or any other forms do not apply. Nothing spoken between the parties forms any basis for our agreement either. If you expect our agreement to contain any additional terms not set forth herein, do not accept this agreement, and speak with your customer representative as such additional terms are not included. Also, please note that the summaries we have provided at the beginning of each section of this agreement (in the grey shaded text boxes) are for informational purposes only, and are not binding on either party. The content in these sections are meant to help provide a layman’s interpretation of terms that have been drafted by lawyers. This Agreement sets forth Licensor’s entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and Licensor with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software. No amendment to or modification of this Agreement will be binding unless made in writing and signed by Licensor. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect the invalid, unenforceable or illegal provision shall be amended to achieve as closely as possible the effect of the original term. Notwithstanding anything to the contrary in this Agreement, the headings and boxed, shaded summaries in each Section of this Agreement are for informational purposes only, and are not binding on either party. They are offered to help explain otherwise more complex terms that form this Agreement.
21. INJUNCTIVE RELIEF.
In certain emergency situations, we may need to ask a court for fast relief, which is commonly in the form of an injunction or temporary restraining order. For example, if we believe a customer is trying to resell our software to a third party in violation of this agreement, we can ask a court to stop such action.
You agree that a breach of this Agreement adversely affecting Licensor’s proprietary rights in the Software may cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and Licensor shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
22. NO ASSIGNMENT.
This agreement is between you and us. We do not permit our customers to freely assign our agreement to third parties.
Licensee may not assign or otherwise transfer this Agreement or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Licensor, which consent may be withheld in Licensor’s sole discretion; and any attempted transfer or assignment is null and void and shall be deemed a material breach of this Agreement.
23. CONFIDENTIAL INFORMATION.
Information and software are confidential. The software and ordering documents may contain trade secrets, copyright information, trade marks, and patentable content. As such, the information is confidential and should be protected.
You acknowledge and agree that the Software and all information emanating from the Software and Licensor’s business in any form are valuable trade secrets of Licensor and “Confidential Information.” You agree that you will not, during or after the term of this Agreement, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than your employees, agents or representatives), unless such duplication, use or disclosure is specifically authorized by Licensor in writing prior to any disclosure. You shall use reasonable diligence, and in no event less than that degree of care that you use in respect to your own confidential information of like nature, to prevent the unauthorized disclosure or reproduction of the Confidential Information. Without limiting the generality of the foregoing, to the extent that this Agreement permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions and party shall keep detailed records of the location of all Confidential Information. Licensee shall not make any formal public announcements relating to this Agreement (e.g., a press release) without the prior written approval of Licensor, unless otherwise required by law.
24. ELECTRONIC COMMUNICATIONS; NOTICES.
This section allows us to send notices and communications to you electronically (e.g., via electronic mail). You hereby agree to the use of electronic communications in order to enter into this Agreement, to create other records and to the electronic delivery of notices, policies and records of transactions between you and Licensor with respect to the Software and this Agreement. You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non- electronic records, to the extent permitted under applicable mandatory law. In addition, Licensor may deliver notices to you by prepaid certified mail, return receipt requested at the address in Licensor’s database; any notice that complies with this Section shall be deemed effectively given upon delivery. Any notice you provide to Licensor must be given by prepaid certified mail, return receipt requested at the address at the top of this Agreement.
25. SURVIVAL.
Upon the expiration or termination of this agreement, certain obligations and rights shall still survive as stated below. For example, just because our agreement may terminate does not mean the information that was exchanged is not confidential, and such obligations to protect any information a party may continue to possess afterwards will survive. The provisions of this Section 25 and Sections 3 – 8, 13, and 16 – 24 shall survive termination or expiration of this Agreement, for any reason. If you download or access Licensor’s SDK or API Software, the following Sections also survive the termination of this Agreement: 28(d) through 28(h), 31 and 34.
26. SDK TERMS & CONDITIONS.
If you are a software developer or your organization is going to access or use our software development kit or application programming interfaces, the remainder of this agreement apply to such uses and to you. We are happy to discuss such terms and conditions with you should have any questions. Welcome to Licensor’s software development program (the “Program”). Participation in the Program will allow you (also referred to herein as the “Developer”) to use the Licensor Software Development Kit (the “SDK”). Before you access and/or use any Licensor Materials (as defined below), please read these terms and conditions and the Agreement above. Access to and use of the Licensor Materials is subject to the terms and conditions set forth in this SDK Terms & Conditions in Sections 26 through 34 and the Agreement above (the “Agreement”). The Agreement is effective as of the date Developer completes the Program application and Licensor accepts Developer as a Program participant (the “Effective Date”). If you do not agree to the terms and conditions of this Agreement, you may not use or access any Licensor Materials or participate in the Program. USING OR ACCESSING ANY PART OF THE SDK OR LICENSOR MATERIALS INDICATES THAT YOU ACCEPT THESE TERMS. If you are participating in the Program or accessing the Licensor Materials in connection with work you are doing for a company or corporate entity (“Company”), either as an employee or contractor, the term “Developer” includes both you as an individual as well as such Company. In addition, you represent and warrant that you have the authority to bind such Company, and that such Company has authorized you to accept the terms of this Agreement. In an effort to provide better and more useful information to its developers, Licensor may change or add certain materials in the SDK, or change or add to certain aspects of the Program, but is under no obligation to do so. These changes may require changes to the terms and conditions of this Agreement. As such, Licensor reserves its right, at any time and from time to time, to change or modify the terms and conditions of the Program by posting new or revised terms and conditions to Licensor’s website, or by providing such terms and conditions to you in writing, including via email. If you do not agree to the new or modified terms and conditions of this Agreement, you may not continue your participation in the Program, and you may not use or access the Licensor Materials. PARTICIPATING IN THE PROGRAM, OR USING OR ACCESSING ANY PART OF LICENSOR MATERIALS AFTER LICENSOR POSTS OR INFORMS YOU OF NEW OR MODIFIED TERMS AND CONDITIONS, INDICATES THAT YOU ACCEPT ANY CHANGES TO THESE TERMS. a. Definitions. In addition to any other terms which are defined in the body of this Agreement, the following terms have the following meanings:
b. “API(s)” means any application program interface that is provided to Developer in the Licensor Materials or otherwise by Licensor to Developer.
c. “Application” means one or more software application programs that are developed by Developer using the Licensor Materials, solely for use with Licensor Devices, including bug fixes, updates, upgrades, new releases and new versions of such software application programs.
d. “Derivative Work” shall mean a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement under the United States Copyright Act.
e. “Intellectual Property Rights” means all worldwide, current or future, copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, create derivative works of, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, have made, use, sell and offer to sell, import and export), trade secrets, moral rights, right of publicity, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence, and all renewals, continuations, continuations in part and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
f. “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
g. “Licensor Application Catalog” means the Licensor-branded application catalog, which will serve as the sole mechanism for licensed commercial distribution of Applications.
h. “Licensor Devices” means Licensor’s hardware devices.
i. “Licensor Materials” means software, services or other materials available through the SDK, including but not limited to the Licensor Sample Code; Licensor Materials are deemed Software as set forth in Sections 1 – 25 of the Agreement.
j. “Licensor Proprietary Software” means any software or software components, tools, libraries, modules or packages included within the Licensor Materials that are not Open Source Software, including all documentation related to the Licensor Materials.
k. “Licensor Sample Code” means the software source or script code provided by Licensor to assist Developer in the execution or development of Applications using the API.
l. “Personally Identifiable Information” means information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.
m. “Privacy Policy” means Developer’s written policy that it makes available to all end users setting forth Developer’s practices relating to the use, collection, storage and sharing of data relating to or transmitted through the Application by end users.
27. PERMITTED DISCLOSURES BY DEVELOPERS.
Licensor acknowledges and agrees that it is valuable for developers in the Program to be able to communicate with other developers and the general public about their development efforts and their applications. Licensor agrees that Developer shall have the ability to discuss the Licensor Materials, Developer’s development efforts and Developer’s Application(s) with any third party, including but not limited to blogging, website postings, and public presentations; provided however, that IN NO CASE MAY DEVELOPER PUBLISH, REPRODUCE OR DISTRIBUTE THE LICENSOR MATERIALS, except as expressly licensed in Section 28. In addition, Developer shall not disparage or make negative remarks whether written or verbal of Licensor or the Program.
28. DEVELOPER’S LICENSE TO USE THE LICENSOR MATERIALS.
a. The Licensor Materials are Licensed Solely for Your Individual Use. You shall use the Licensor Materials solely in accordance with the terms of this Agreement and may not provide the Licensor Materials to any other individual or third party. If the Licensor Materials are going to be used by You in your capacity as an employee of a company, You must (i) agree to this Agreement on behalf of your company, (ii) represent and warrant that you have the authority to bind your company to the terms and conditions of this Agreement, and (iii) use the Licensor Materials solely on behalf of and for purposes of your company. In addition, if You accept this Agreement on behalf of a Company, You may share the Licensor Materials with other employees and individuals doing work for your Company, provided such individuals have a need to know the information to facilitate your Company’s development of Applications using the Licensor Materials.
b. License for Licensor Materials.
i. Internal Use of Licensor Materials. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Developer during the term of the Agreement, a limited, revocable, non- exclusive, non-transferable, non-sublicensable, personal license to internally use the Licensor Materials (excluding any Open Source Software that may be included in the Licensor Materials, which software is licensed in accordance with Section 28(c)) solely for the purpose of developing and testing Applications, and not for purposes of any distribution, commercial or otherwise, except as otherwise expressly provided herein. EXCEPT AS EXPRESSLY PERMITTED IN THIS SECTION 28(b), DEVELOPER MAY NOT SUBLICENSE, PROVIDE OR REDISTRIBUTE ANY PORTION OF THE LICENSOR MATERIALS TO ANY THIRD PARTY.
ii. Limited License for Licensor Sample Code. Subject to the terms and conditions of this Agreement and Section 28(b)(iii), Licensor hereby grants to Developer during the term of the Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, personal license to: (i) create Derivative Works of the Licensor Sample Code solely for the purpose of developing and testing Applications for Licensor Devices; and (ii) upon prior written consent of Licensor in each instance, distribute the Licensor Sample Code and Derivative Works thereof for use with Licensor Devices.
iii. Impermissible Use of Modifiable Code. Notwithstanding the provisions of Section 28(b)(ii) above, Developer MAY NOT USE, REPRODUCE OR DISTRIBUTE ANY APPLICATION, TOOL, FRAMEWORK OR SOFTWARE WHICH CONTAINS, ENCAPSULATES OR REPRODUCES LICENSOR’S SOFTWARE IN WHOLE OR SUBSTANTIAL PART.
iv. Attribution. Developer agrees that any Derivative Work created pursuant to Section 28(b)(ii) shall include the following copyright notice within Developer’s source code and in the location of Developer’s own copyright notice: “Portions copyright © Introvoke and its subsidiaries. All rights reserved.” Developer agrees not to remove, alter or obscure any product identification, copyright or other notices embedded within or on the Licensor Sample Code.
v. Reservation of Rights. Except as expressly provided herein, no other right or license is granted by Licensor under this Agreement. All rights not expressly granted hereunder are expressly reserved to Licensor and its licensors.
c. Open Source Software. Developer hereby acknowledges that the Licensor Materials may contain Open Source Software. Developer agrees to review any documentation that accompanies the Licensor Materials or is identified in a link provided in the documentation for the Licensor Materials in order to determine which portions of the Licensor Materials are Open Source Software and are licensed under an Open Source Software license. To the extent any such license requires that Licensor provide Developer the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Developer in this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. Developer acknowledges that the Open Source Software license is solely between Developer and the applicable licensor of the Open Source Software. Developer shall comply with the terms of all applicable Open Source Software licenses, if any.
d. Licensor Proprietary Software. At no time shall Developer distribute any Licensor Proprietary Software as Open Source Software, or do anything (including but not limited to the development of the Application) that in any way would cause such Licensor Proprietary Software to be subject to any Open Source Software or similar license.
e. No Endorsement. Developer agrees that unless Developer receives the express prior written authorization of Licensor, Developer will not: (a) market Applications developed using the Licensor Materials in any manner which implies that Licensor or its suppliers endorse such products; or (b) use the image or likeness (e.g., photograph, drawing, etc.) of a Licensor Device or other Licensor product for any purpose (including, without limitation, in any advertisements, on Developer’s website, or on the packaging, marketing materials or collateral for any Applications).
f. Third-Party APIs and Content. Certain portions of Licensor Materials, including APIs and content provided through use of the SDK, may be provided by third parties. These third parties may require separate or different terms for use of their materials. Either Licensor or the applicable third party will provide Developer with the applicable terms and conditions either through an email notification, a conspicuous posting on the Licensor’s website, or via a click through agreement.
g. General Restrictions. Except as expressly provided herein, Developer shall not (and shall not allow or enable any third party, including end users of its Application(s) to):
i. copy, modify, create a derivative work of, sublicense, rent, sell, lease or otherwise transfer or distribute the Licensor Materials or any portion thereof (except as expressly permitted herein solely with respect to the Licensor Sample Code) to any person or entity, except as expressly provided in this Agreement;
ii. decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of Licensor Materials by any means whatsoever;
iii. remove any product identification, legal, copyright, trademark or other proprietary rights notices contained in the Licensor Materials;
iv. engage in any activity with the Licensor Materials, including development and distribution of an Application, that interferes with, disrupts, damages or accesses in an unauthorized manner the servers, networks, or other properties or services of Licensor or any third party including, but not limited to, any mobile communications carrier;
v. use the Licensor Materials for any fraudulent, unlawful or illegal activity, including developing an Application that would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act;
vi. use the Licensor Materials to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as intellectual property rights and rights of privacy and publicity) of others, including developing an Application that would facilitate any such activities;
vii. use the Licensor Materials to use, display, transmit or otherwise make available content that promotes disruptive commercial messages or advertisements, including developing an Application that would facilitate any such activities;
viii. sell, lease, share, transfer, sublicense or derive income from the use or provision of the APIs, whether for direct commercial or monetary gain or otherwise, without Licensor’s prior written permission;
ix. use the APIs in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation as determined by Licensor in its sole discretion.
h. Additional Restrictions and Requirements for Location-Based Services APIs. If Developer utilizes Licensor’s Location-Based Services APIs (the “LBS APIs”), the following additional terms shall apply:
i. Developer acknowledges and agrees that data provided to Developer through the LBS APIs may be provided by third parties.
ii. Developer acknowledges and agrees that it may not charge its end users any premium for utilization of the LBS APIs in Applications, above and beyond any normal charge for such Application.
iii. Developer acknowledges and agrees that Developer shall not use the LBS APIs or the content provided through the LBS APIs:
- except for getting an initial location fix, to provide real time route guidance for authorized parties (e.g., police and emergency responders);
- in conjunction with any systems or functions for automatic or autonomous control of vehicles, aircraft, or other mechanical devices; or
- in conjunction with fleet management or similar applications.
iv. Developer acknowledges and agrees that, except on end-user devices, it will not cache or store Cell ID or Wifi address information along with related latitude/longitude information.
i. Developer further represents and warrants that, in its performance hereunder, both Developer and the Applications developed hereunder shall comply with all applicable laws, regulations and rules of any government body or agency or other competent authority, including all applicable privacy, privacy-related, data security and data security-related laws and regulations (including, in each case, any applicable foreign laws and regulations).
29. DEVELOPERS’ OWNERSHIP AND ABILITY TO DISTRIBUTE ITS APPLICATIONS.
a. Ownership of Applications. Except for Licensor Materials and other information or property of Licensor, Developer shall retain all rights, title and interest in and to Applications and all Intellectual Property Rights therein. Licensor obtains no right, title or interest from Developer under this Agreement in or to any Applications that Developer develops. Notwithstanding the foregoing, Developer acknowledges and agrees that Licensor may develop, license or otherwise acquire the rights to distribute products that compete with Developer’s Applications.
b. Application Signing. Developer acknowledges and agrees that Applications which access or make use of Licensor’s APIs may not be installed or used on Licensor Devices, except in a test environment, without first being signed with a certificate issued by or for Licensor. Developer acknowledges and agrees that the method under which such certificates will be issued, and Developer’s ability to distribute such Applications for use with Licensor Devices will be subject to further terms and conditions, which may include additional fees for application signing. Such terms and conditions shall be presented to Developer upon or before Developer’s request for issuance of a certificate for any Application.
c. Applications Distribution. Developer acknowledges and agrees that (a) distribution of Applications will be subject to Licensor’s written consent in each instance, further terms and conditions, which may include a share of the revenue generated from sale of the Applications to be paid to Licensor by Developer, where such terms and conditions shall be presented to Developer upon or before Developer’s written request to Licensor for distribution of any Application, (b) because of certain laws, regulations, as well as contractual or other restrictions, Licensor may refuse to allow the distribution of certain types of Applications, and (c) distributed Applications may be viewable or inspectable by third parties, and Licensor is not obligated to take any steps to obfuscate the code associated with the Applications or take any other steps to prevent third parties from viewing or inspecting Application code.
30. PRIVACY.
a. Privacy Policy – Terms of Use. Prior to and as a condition of distribution of Applications, Developer must have a Privacy Policy and approved terms of use in place which covers use of its Application(s).
b. Use of Personally Identifiable Information. If an Application accesses, uses, associates or collects information that constitutes Personally Identifiable Information under applicable law from end users, Developer must disclose such activities to each end user and obtain each end user’s consent before allowing the Application to perform such activities. Developer shall fully indemnify, defend and hold Licensor harmless from any breach by Developer of this provision or breach of any provision in Developer’s Privacy Policy.
31. DEVELOPER’S LICENSES TO LICENSOR.
a. Limited License to Application. If You choose to submit any Application to Licensor for any type of review, analysis or assistance, You grant to Licensor a worldwide, perpetual, irrevocable, non-exclusive,royalty-free license to use, reproduce, display, perform and distribute the Application in executable object code form, solely in order to evaluate, test and analyze the Application, including but not limited to providing the Application to Licensor personnel and third party distribution partners. This Section 31(a) only grants a limited license and is not a sale of the Application or any portion or copy thereof.
b. License to Developer Data. Developer acknowledges and agrees that certain Applications may access APIs that require Licensor to pass information generated by Developer’s Application (the “Developer Data”) to third party partners of Licensor as required by such third party partners to enable the functionality of the APIs. Developer hereby grants Licensor a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license to use, reproduce, display, perform and distribute the Developer Data (including providing Developer Data to third party partners of Licensor which require such data) solely for the purposes of (i) enabling an Application or any service used by an Application; (ii) monitoring the performance, quality and security of the APIs and Applications; or (iii) improving the SDK, or Licensor’s products or services, provided that no Personally Identifiable Information of end users is used in connection with 7.2(iii).
32. OWNERSHIP AND TRADEMARKS.
a. Ownership of Licensor Materials. This Agreement only grants a license and is not a sale of the Licensor Materials or any portion or copy thereof, except as expressly provided herein. As between the parties, Licensor owns all right, title and interest in and to Licensor Materials, including but not limited to the Licensor Proprietary Software, the Licensor Sample Code, any updates thereof and all Intellectual Property Rights therein. Licensor reserves all right, title and interest in and to the Licensor Materials not expressly granted to Developer under this Agreement, and except for the licenses granted by Licensor to Developer under this Agreement, no right, title, ownership, interest or license in or to the Licensor Materials, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Developer under or in connection with this Agreement.
b. Ownership of Modifications. Subject to Licensor’s underlying rights in the original Licensor Sample Code, Developer shall retain all rights, title and interest in and to any incremental modifications to or Derivative Works of the Licensor Sample Code developed by or for Developer in accordance with this Agreement and Section 28(b)(ii) (such Modifications and Derivative Works, the “Incremental Modifications”); provided, however, Developer hereby covenants and agrees that it will not, at any time during the term of this Agreement or thereafter, assert any claim of any kind against Licensor, any Licensor customer, or any Licensor developer (who has agreed to substantially similar terms as this Agreement), alleging infringement of Developer’s Intellectual Property Rights or other rights in such Incremental Modifications.
c. Licensor Trademarks. Developer acknowledges that Licensor or its affiliates are the sole owners of all trademark rights in the marks used by Licensor to designate the company itself, its products (inclusive of Licensor Devices) and/or services. Developer agrees to do nothing inconsistent with such ownership. Developer acknowledges that this Agreement does not grant any rights to use any of the foregoing trademarks or any other trademark of Licensor or any of its affiliates, even if such marks are included in any of the Licensor Materials. If Developer receives notice that a third party claims an intellectual property right in particular functionality or code contained in the Licensor Materials (or their utilization under this Agreement), Developer must notify Licensor of the same in writing in reasonable detail.
33. SUPPORT AND MAINTENANCE.
a. Development Support. Licensor shall have no obligation pursuant to this Agreement to provide Developer with any support regarding the Licensor Materials. Notwithstanding any other provisions of this Agreement, Licensor shall have no obligation to provide Developer with any updates to the Licensor Materials. Licensor shall have no obligation to provide any maintenance or support for the Applications under this Agreement.
b. End User Support. Developer shall be solely responsible for providing support to end users of its Applications.
CHANGES TO TERMS OF THIS AGREEMENT; LICENSOR MATERIALS.
Licensor reserves the right, at any time, to change and otherwise modify the terms of this Agreement upon written notice to Developer. Developer acknowledges and agrees that the form and nature of the Licensor Materials that Licensor provides may change without prior notice to Developer and that future versions of the Licensor Materials may be incompatible with applications developed on previous versions of the Licensor Materials. Developer acknowledges and agrees that Licensor may stop (either permanently or temporarily) providing the Licensor Materials or Licensor Devices (or any features within the Licensor Materials, or any functionality that is enabled by the APIs included in the Licensor Materials) to Developer or end users of Applications, at Licensor’s sole discretion, without prior notice to Developer.