Streamwide – SDK LICENSE AGREEMENT
This SDK License Agreement (the “Agreement”), effective as of [DATE] (the “Effective Date”), is by and between Streamwide, Inc., having a place of business at 1099 Wall Street W, Suite 354, Lyndhurst, New Jersey, 07071 (hereinafter “Licensor” or “Streamwide”) and [LICENSEE NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE] with offices located at [ADDRESS] (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Licensor desires to license the SDK (defined below) to Licensee for the sole purpose of allowing the Licensee to integrate specific functionalities through the access of a sample code into the Licensee Application (defined below); and
WHEREAS, Licensee desires to obtain a license to use the SDK for its internal business purposes, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
1.1. "Agreement" has the meaning set forth in the introduction of this Agreement.
1.2. “Application” means any computer program developed and/or operated by Licensee that integrates the SDK.
1.3. “Application Data” means all data transiting via the Application including any Personal Data of Users, transiting via the Application; The Licensee has sole ownership and/or control and provides storage of Application Data.
1.4. “Confidential Information” has the meaning set forth in Section 9.1 of this Agreement.
1.5. “Effective Date” means the date the Agreement comes into force, when Licensee has access to the SDK.
1.6. “End User” means all natural or legal person using Licensee Application.
1.7. “Feedback” has the meaning set forth in Section 10.4 of this Agreement.
1.8. “Initial Term” has the meaning set forth in Section 16 of this Agreement.
1.9. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.10. “Intellectual Property” means, with respect to a Party, all right, title and interest in and to copyrights, patents, designs, trademarks, database rights, domain names, trade secrets, Confidential Information, know-how, and any other intellectual property rights whether registered or unregistered.
1.11. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.12. “Licensee” has the meaning set forth in the introduction of this Agreement.
1.13. “Licensor” has the meaning set forth in the introduction of this Agreement.
1.14. "Losses" has the meaning set forth in Section 14 of this Agreement.
1.15. "Notice" has the meaning set forth in Section 20 of this Agreement.
1.16. “Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
1.17. “Personal Data” or “Personal Information” has the meaning set forth within the meaning of Section 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Personal Data (the “GDPR”) and/or applicable federal or state laws of the United States.
1.18. “Renewal Term” has the meaning set forth in Section 16 of this Agreement.
1.19. “Representatives” means, with respect to a Party, that Party's employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
1.20. “Services” means the maintenance and hosting services provided for free with the SDK.
1.21. “SDK” means the Software Development Kit developed by Streamwide, including all Updates, made available to Licensee for integration by Licensee in any and all Applications that integrates and/or are developed with the SDK.
1.22. "SDK Account” means the account(s) created by Licensee to have a private and secure access to the SDK, provided by Licensor.
1.23. “SDK Documentation” means the technical documentation relating to the SDK, made available to Licensee by Licensor.
1.24. “SDK License” has the meaning set forth in Section 3 of this Agreement.
1.25. “SDK Personal Data” has the meaning set forth in Section 12 of this Agreement.
1.26. “Term” has the meaning set forth in Section 16 of this Agreement.
1.27. “Third-Party Claim” has the meaning set forth in Section 14 of this Agreement.
1.28. “Update” means any update, upgrade, release, or other adaptation or modification of the SDK, including any updated SDK Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the SDK.
1.29. “Warranty Period” has the meaning set forth in Section 13 of this Agreement.
2. Access; Registration.
2.1. In order to have access to the SDK, Licensee must provide Licensor with registration information, which shall be up-to-date, accurate, and complete.
2.2. Upon Licensee’s registration, Licensor shall provide Licensee with access to the SDK provided, however, that the SDK License does not include the right to distribute the SDK Documentation.
2.3. All access, including access by End Users, to the SDK provided by Licensor is deemed to have been made by Licensee, for which Licensee is responsible.
2.4. For the avoidance of doubt, Licensee has sole ownership and/or control and provides storage of Application Data.
3. License Grant.
3.1. Upon successful registration, Licensor shall grant a personal, non-exclusive, non-transferable, but revocable in the event of the termination or your violation of this Agreement, worldwide (subject to applicable export restrictions) license (the “SDK License”) to use the SDK for the following purposes:
3.1.1. during the Term of the Agreement, Application development, and integration of the SDK into Licensee’s Application(s); and
3.1.2. in perpetuity, the distribution and promotion of Application(s) to End Users, subject to the terms and conditions in this Agreement; provided, however, such Application development and integration of the SDK shall be suspended or terminated in the event that Licensee and/or Licensee End users do not comply with the terms and conditions of this Agreement, including but not limited to Section 4. Such suspension shall under no circumstances be considered as a breach of this Agreement by Licensor and shall be without prejudice to other relieve for Licensor hereunder, at law and/or in equity.
3.2. Licensee hereby acknowledges and agrees that:
3.2.1. Licensee shall not use the SDK for any purposes other than such purposes set forth in Section 3.1 of this Agreement; and
3.2.2. once the SDK License is terminated pursuant to the terms of this Agreement, License shall not in any way try to decouple and/or repurpose the SDK from any developed Application(s) from which the Application was developed and the SDK was integrated.
4. Licensee Obligations; License Restrictions.
4.1. During the term of the Agreement, Licensee hereby acknowledges and agrees to, at all times:
4.1.1. provide an environment compatible with the SDK, in compliance with the up-to-date SDK Documentation;
4.1.2. not use in combination with the SDK any software or IT tool(s) provided by third parties which may, in whole or in part, hinder the proper functioning of the SDK;
4.1.3. to report to Licensor any anomaly detected in the SDK in a timely manner; and
4.1.4. to verify the content, legality and integrity of the Application Data.
4.2. Except as this Agreement expressly permits, Licensee and Applications shall not, and shall not permit any End User or other person to:
4.2.1. modify, copy, reproduce, transcribe, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the SDK or SDK Documentation to any third party;
4.2.2. reverse engineer, disassemble, decompile, decode, or adapt the SDK, or otherwise attempt to derive or gain access to the source code of the SDK, in whole or in part;
4.2.3. bypass or breach any security device or protection used for or contained in the SDK or SDK Documentation;
4.2.4. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, copyright notices, terms of the SDK Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the SDK or SDK Documentation;
4.2.5. use the SDK or SDK Documentation in the following manner(s) or purpose(s):
4.2.5.1. for infringing, misappropriating, or otherwise violating any Licensor Intellectual Property Right or other right of any person, or that violates any applicable Law;
4.2.5.2. for benchmarking or competitive analysis of the SDK;
4.2.5.3. for developing, using, or providing a competing software product or service, or any other purpose that is to Licensor's detriment or commercial disadvantage;
4.2.5.4. in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the SDK could lead to personal injury or severe physical or property damage; or
4.2.5.5. not otherwise expressly permitted by this Agreement or for the benefit of any other person or entity other than Licensee and End Users; or
4.2.6. provide a similar user experience to End Users with those provided by “team on the run” solution developed by Licensor in case of Google Play and Apple Store’s publishing of the Application by Licensee (in this context, Licensee shall comply with conditions of Google Play and Apple Store’s Antispam rules and any other such resource’s rules).
4.3. Licensee is solely responsible for informing End Users as to their use of the SDK on their device(s) through the Application(s) and enforcing their compliance with this Section 4.
5. Open Source Licenses.
The SDK includes Open Source Components. These components and their associated Open Sources Licenses are listed in Appendix A . Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open Source License(s)]
6. Updates.
During the Term, Licensor may provide Licensee with all Updates (including updated SDK Documentation) that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. Licensee shall install all Updates as soon as practicable after receipt.
7. Payment Obligations under Separate Contracts.
SDK is provided at no additional cost to Licensee. However, Licensee expressly acknowledges that it is, by separate contract, licensing from Licensor certain products from Licensor. Should Licensee breach any of its obligations. under those separate contract(s), the same will be deemed a breach of this Agreement, and absent a cure of such breach, this Licensee will automatically terminate, and Licensee’s access to the SDK revoked.
8. Audit
8.1 During the term of the Agreement and continuing for a period of two (2) years after its expiry or earlier termination, the Licensee will cooperate as necessary to allow any person appointed by the Licensor, where applicable, to audit, at Licensor’s request, the conditions under which the SDK’s information are performed, including the equipment used and installations in which SDK are performed, to ensure that Licensor’s use complies with the terms of this Agreement, and with the all applicable laws then in force.
8.2 Similarly, in the event of an inspection by any competent anti-corruption authority, Licensee shall undertake to collaborate with Licensor to prepare said inspection and to make all documentation relating to the SDK accessible to inspectors.
8.3 Licensor may conduct such audits at any time, during normal working hours, on reasonable prior written notice (at least five (5) working days before the audit) to Licensee. Licensee shall undertake to provide Licensor with all the documents and data necessary to prepare and conduct the audit.
9. Confidentiality.
9.1. In connection with this Agreement, each Party (the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, the Confidential Information of Licensor includes
9.1.1. the SDK;
9.1.2. SDK Documentation; and
9.1.3. the financial terms of this Agreement.
9.2. For the avoidance of doubt, Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
9.2.1. was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement;
9.2.2. was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; or
9.2.3. was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality
9.3. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
9.4. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:
9.4.1. promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and
9.4.2. provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
9.5. If the Disclosing Party waives compliance or, after providing the notice and assistance required under Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
9.6. Upon the expiration or earlier termination of this Agreement and/or the SDK License, the Receiving Party shall return or destroy, as directed by the Disclosing Party, all Confidential Information of the Disclosing Party, regardless of the media on or in which it was received or maintained, and including all originals, copies, excerpts, and/or analyses thereof. Further, in the case of Licensee, Licensee shall discontinue all use of the SDK and its access to the SDK will be revoked by Licensor.
10. Intellectual Property Rights.
10.1. Licensee hereby acknowledges and agrees that:
10.1.1. Licensor is the sole and exclusive owner of all right, title, and interest in and to the SDK and SDK Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open Source Components and1[1]SDK License granted to Licensee under this Agreement; provided, however, that Licensee is and remains the owner and/or authorized user and/or authorized controller of all right, title, and interest in and to any and all Application(s) developed by Licensee using the SDK, except as to the SDK itself therein integrated;
10.1.2. the SDK and SDK Documentation are licensed, not sold, to Licensee by Licensor;
10.1.3. this Agreement shall not be interpreted as an assignment and does not transfer to Licensee any title or ownership in and to the SDK or SDK Documentation; and
10.1.4. Licensee does not have, under or in connection with this Agreement, any ownership interest in the SDK or SDK Documentation, or in any related Intellectual Property Rights.
10.2. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the SDK or SDK Documentation.
10.3. Licensee shall, during the Term:
10.3.1. take all commercially reasonable measures to safeguard the SDK, SDK Access, and SDK Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
10.3.2. take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor's ownership of the Intellectual Property Rights in the SDK and SDK Documentation;
10.3.3. promptly notify Licensor in writing if Licensee becomes aware of:
10.3.3.1. any actual or suspected infringement, misappropriation or other violation of Licensor's Intellectual Property Rights in or relating to the SDK or SDK Documentation; or
10.3.3.2. any claim that the SDK or SDK Documentation, including any production, use, marketing, sale or other disposition of the SDK or SDK Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; or
10.3.3.3. misuse or misappropriation of the SDK Access;
and in each case
10.3.4. fully cooperate with and assist Licensor in all reasonable ways in the conduct of any legal proceeding by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor's rights in, and to attempt to resolve any legal proceeding relating to, the SDK or SDK Documentation, including having Licensee's employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
10.4. If Licensee or any of its End Users, employees or contractors sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the SDK or SDK Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
10.5. Licensee hereby assigns to Licensor on Licensee's behalf, and on behalf of its End Users, employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.
11. Security Measures.
11.1. Licensor may deploy technological measures designed to prevent unauthorized or illegal use of the SDK.
11.2. Licensee hereby acknowledges and agrees that:
11.2.1. Licensor may use these and other lawful measures to verify Licensee's compliance with the terms of this Agreement and enforce Licensor's rights, including all Intellectual Property Rights, in and to the SDK;
11.2.2. Licensor may deny any individual access to and/or use of the SDK if Licensor, in its reasonable discretion, believes that an End User’s use of the SDK would violate any provision of this Agreement, regardless of whether Licensee designated that person as an authorized End User;
11.2.3. Licensor may use anonymized data for Licensor’s own business purposes; and
11.2.4. Licensor and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee's computers, systems and software, that Licensor may gather periodically to improve the performance of the SDK or develop Updates.
11.3. Licensee hereby acknowledges and agrees that it shall be solely and entirely responsible for
11.3.1. controlling and monitoring the use of the SDK solely by its personnel and by End Users through any and all Applications;
11.3.2. ensuring the security of any Application Data it may collect from its End Users through the use of the Application; and
11.3.3. maintaining a high level of security and integrity of the Application to prevent from any unauthorized use of the Application Data and of the SDK, including the access through any viruses, worms, defects, malware or any items of a destructive nature which are intended to damage, interfere with, deleted, alter, or intercept with the SDK.
12. GDPR Compliance.
12.1. Licensor and Licensee undertake to comply with the legal framework in force applicable in the countries where the Application is used to the processing of Personal Data, if applicable.
12.2. In connection with the SDK License, Licensor acts as data controller for the processing of access to the SDK.
12.3. Licensor processes Personal Data, specifically identification, contact details data, and SDK Credentials (the “SDK Personal Data”), for the purposes of making the SDK available to Licensee. Licensee acknowledges and accepts that the Data processed under the Agreement may be transferred and/or processed, in respect of the Agreement, to Licensor subsidiaries and/or affiliates.
12.4. Subject to the limits provided by the applicable regulations, Licensee may exercise the following rights:
12.4.1. right to access and obtain a copy of Personal Data;
12.4.2. right to ask Licensor to rectify or modify Personal Data that is inaccurate or incomplete;
12.4.3. right to ask Licensor for the deletion of Personal Data;
12.4.4. right to object to the processing of Personal Data;
12.4.5. right to request the cessation of the processing of Personal Data for a specified period of time;
12.4.6. right to request the portability of Personal Data;
12.4.7. right to define post-mortem guidelines with regards to Personal Data; and
12.4.8. right to lodge a complaint with the relevant national authorities.
12.5. In connection with the SDK License, Licensor does not act as data controller for the processing of End User Personal Data.
12.6. Licensor does not act as a data processor to Licensee and in particular does not have access to and does not process End User Personal Data.
12.7. Licensee is solely and entirely responsible for the managing of End Users rights under the GDPR and all other applicable laws, rules and regulation.
13. Limited Warranty; Exclusions; Warranty Disclaimer.
13.1. Licensor warrants to Licensee that for a period of 180 days following the grant of the SDK License (the “Warranty Period”):
13.1.1. the SDK shall substantially conform in all material respects to the specifications provided in the SDK Documentation, when installed, operated, and used as recommended in the SDK Documentation and in accordance with this Agreement.
13.2. If Licensor breaches, or is alleged to have breached, any of the warranties set forth in Section 13.1, Licensor may, at its sole option and expense, take any of the following steps to remedy such breach:
13.2.1. repair or replace the SDK; or
13.2.2. amend, supplement, or replace any incomplete or inaccurate SDK Documentation.
13.3. For the avoidance of doubt, Licensor's sole liability under the limited warranty is set forth in Section 13.1 and Licensee's sole remedies for Licensor’s breach of such limited warranty is set forth in Section 13.2.
13.4. Notwithstanding any provisions to the contrary in this Agreement, Licensor shall not be responsible for, and the limited warranty set forth in Section 13.1 shall apply to any issues or problems arising out of or relating to:
13.4.1. the SDK, or the media on which it is provided, that is modified or damaged by Licensee, its Representatives, or End Users;
13.4.2. any operation or use of, or other activity relating to, the SDK other than as specified in the SDK Documentation, including any incorporation in the SDK of, or combination, operation or use of the SDK in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for Licensee's use in the SDK Documentation, unless otherwise expressly permitted by Licensor in writing;
13.4.3. Licensee's, Licensee’s Representative’s, an End User’s, or any third party's negligence, abuse, misapplication, or misuse of the SDK, including any use of the SDK other than as specified in the SDK Documentation or expressly authorized by Licensor in writing;
13.4.4. Licensee's or an End User’s failure to promptly install all Updates that Licensor has previously made available to Licensee;
13.4.5. the operation of, or access to, Licensee's, an End User’s, or a third party's system or network;
13.4.6. any software for which Licensor does not receive a license fee;
13.4.7. Licensee's material breach of any provision of this Agreement; or
13.4.8. any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
13.5. Licensee expressly agrees that its use of the SDK is at its sole risk and that Licensee is solely responsible for any direct damage to its own system or network and for any loss of data that results from such use.
13.6. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN 13.1, THE SDK LICENSE, SDK DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SDK OR SDK DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S, AN END USER’S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY APPLICATION, SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”.
14. Indemnification.
14.1. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) (“Losses”) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the SDK or SDK Documentation, or any use of the SDK or SDK Documentation in accordance with this Agreement, infringes or misappropriates such third party's patents or copyrights, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor's sole discretion, to modify or replace the SDK or SDK Documentation, or component or part thereof, to make it non-infringing, or obtain the right for Licensee to continue use. If Licensor determines that none of these alternatives is reasonably available, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
14.2. Section 14.1 of this Agreement shall not apply to the extent that the alleged infringement arises from:
14.2.1. use of the SDK in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing;
14.2.2. modifications to the SDK not made by Licensor; or
14.2.3. use of any version other than the most current version of the SDK or SDK Documentation delivered to Licensee.
14.3. Licensee shall indemnify, hold harmless, and, at Licensor's option, defend Licensor from and against any Losses resulting from any Third-Party Claim based on Licensee's, or any End User's:
14.3.1. negligence or willful misconduct;
14.3.2. misuse or use of the SDK or SDK Documentation in a manner not authorized or contemplated by this Agreement;
14.3.3. use of the SDK in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing;
14.3.4. modifications to the SDK not made by Licensor;
14.3.5. conduct that would render any and all Applications and/or the Application Data illegal, harmful or infringing any Intellectual Property Right of a third party;
14.3.6. use of any version other than the most current version of the SDK or SDK Documentation delivered to Licensee, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice;
14.3.7. development and/or use of any and all Applications, including without limitation any losses suffered by Licensee and/or any third party directly or indirectly as a result of the use or failure of such Applications; and/or
14.3.8. suspected or actual violation of any laws, rules or regulations, including without limitation privacy laws.
14.4. Licensee shall at all times that its Applications are in use and this indemnity obligation remains in effect maintain general commercial liability insurance, professional liability insurance, errors and omissions coverage, and cyber and crime coverage in accordance with the insurance certificate annexed hereto as Appendix B. Annually so long as this Agreement remains in effect, Licensee will provide an updated insurance certificate evidencing the renewal of such policies. Except as to the professional liability insurance, Licensor shall be named as an additional insured.
14.5. THIS Section 14 SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SDK OR SDK DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. EXCEPT AS TO LICENSOR’S INDEMNITY OBLIGATION, IN NO EVENT WILL LICENSOR'S LIABILITY UNDER THIS SECTION 14 EXCEED $100.
15. Limitation of Liability.
IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; LOSS OF GOODWILL OR REPUTATION; USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; improper or fraudulent use(S) of SDK AND/OR ACCESS THERETO; OR COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR LICENSOR’S INDEMNITY OBLIGATIONS, IN NO EVENT WILL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNT BELOW US$100.
16. Term; Termination.
16.1. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect for a period of three (3) years from such date (the “Initial Term”). This Agreement will automatically renew for additional one (1) year periods, unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least one hundred eighty (180) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
16.2. In addition to any other express termination right set forth in this Agreement, Licensor may terminate this Agreement, effective on written notice to Licensee, if Licensee:
16.2.1. breaches any of its obligations under Section 4 or Section 9;
16.3. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party:
16.3.1. materially breaches this Agreement, and such breach:
16.3.1.1. is incapable of cure, as determined by the Parties, or
16.3.1.2. being capable of cure, remains uncured (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
16.3.2. becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
16.3.3. files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
16.3.4. makes or seeks to make a general assignment for the benefit of its creditors; or
16.3.5. applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
16.4. Upon expiration or earlier termination of this Agreement, the SDK License granted hereunder for development purposes pursuant to shall terminate and without limiting Licensee's obligations under Section 9, Licensee shall
16.4.1. cease using and delete, destroy, or return all copies of the SDK and SDK Documentation in its possession or control that was received under this Agreement, except and only as necessary for the support of any and all Applications that incorporate the SDK, and for no other purpose whatsoever;
16.4.2. certify in writing to the Licensor that the SDK and SDK Documentation has been deleted or destroyed; and
16.4.3. require all End Users and third parties to which it provided access to the SDK and SDK Documentation to cease using and delete, destroy, or return all copies of the SDK and SDK Documentation.
16.5. For the avoidance of doubt, any further development or use in connection with the SDK while maintained in Licensee systems following the termination of the SDK License is a material breach of this Agreement.
17. Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: first, this Agreement, excluding its Exhibits; second, the Exhibits to this Agreement as of the Effective Date; and third, any other documents incorporated herein by reference.
18. Survival.
This Section 18 and Sections 1, 3.1.2, .2, 4.2, 4.3, 8 through 10, inclusive, 11.3, 12., 13.3, 13.5, 13.6, 14, 15, 16.4, 16.5, 17 – 20, inclusive, 23, 24, and 26 through 30, inclusive survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
19. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
20. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section. Notices to Streamwide will be directed as follows : Streamwide Inc. 1099 Wall Street W, Suite 354, Lyndhurst, New Jersey, 07071.
21. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to: acts of God; flood, fire, earthquake, epidemics (as declared by the US government) or explosion; (war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; government order, Law, or actions; embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns, or other industrial disturbances; and shortage of adequate power or transportation facilities. In the event of breach of its obligations due to force majeure as defined under applicable Laws, the defaulting Party undertakes to notify the other Party without delay. From the date of receipt of the notification, if the force majeure event persists without interruption or discontinuity for thirty (30) days, the Agreement may be terminated by either Party, by written notification sent via registered letter with acknowledgment of receipt. Each Party shall bear all its own costs incurred by the other Party as a result of the force majeure.
22. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
23. Severability.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term, provision of this Agreement, invalidate, or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
24. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal Laws of the State of New Jersey without giving effect to any choice or conflict of Law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of New Jersey. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of New Jersey, in each case located in the city of Hackensack and County of Bergen, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH OF THE PARTIES HEREBY AGREES TO WAIVE THE RIGHT TO A TRIAL BY JURY.
25. Assignment.
Licensor may assign or delegate any of its rights or obligations hereunder to any third party without the prior consent of Licensee. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of Law or otherwise, without the prior written consent of Licensor, which consent shall not be unreasonably withheld, conditioned, or delayed. Such consent, if given, may be made subject to the payment of any additional fee and/or any other term or condition. For the avoidance of doubt, any acquisition of all or substantially all of assets of Licensee, or an acquisition of an entity of Licensee by another entity by consolidation, merger or other reorganization or combination in which the holders of its outstanding voting securities immediately prior to such transaction do not own, immediately after such transactions, securities representing more than fifty percent (50%) of its voting power or other entity surviving such transaction shall be regarded as an assignment hereunder. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
26. Export Regulation.
The SDK may be subject to US or EU export control Laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the SDK to, or make the SDK accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law, rule, or regulation. Licensee shall comply with all applicable federal Laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the SDK available outside the US or EU.
27. US Government Rights. Each of the SDK Documentation and SDK is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the SDK and SDK Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
28. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9 or, in the case of Licensee, Section 4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity, or otherwise.
29. Counterparts.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
30. Commercial reference.
By way of derogation, The Licensee agrees to grant the Licensor the right to use Licensee’s company name and logo as a commercial reference for marketing or promotional purposes on Licensor’s website and in other communication materials and actions (e.g. internal sales support, training materials, and press releases) with any existing or potential developers, partners and/or clients. Both of the Parties, with prior written approval, are authorized to use, reproduce, distribute and display the other trademarks and logos in promotional materials and commercial documents, including but not limited to company overviews, product presentations, printed documentation.
31. Electronic signature.
In accordance with the electronic signature requirement, the Parties acknowledge that electronic documentation has the same probative value paper documentation and is enforceable on the parties. Each Parties may use an electronic signature process using an electronic certificate, constituting a reliable identification process ensuring the signature is linked to the document to which it is affixed. The process gives a definite date to electronic documents and ensures preservation under conditions that guarantee their integrity. Licensor may propose, under a partnership with a third-party service provider, use of a process that matches these technical requirements. Each Parties undertake not to challenge the enforceability and probative value of such a signature process.
[Signature on Next Page]
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above.
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STREAMWIDE INC
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By_____________________
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[Licensee]
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By_____________________ |
APPENDIX B – LICENSEE INSURANCE CERTIFICATE