- License to the SDK Subject to Licensee's compliance with these terms, including the Restrictions in Section 2, Company grants Licensee a limited, worldwide, royalty-free, term-limited, non-transferrable, and non-exclusive license to use the SDK within its Applications and websites (collectively the "Properties"), or to use other APIs, web services and other features provided by Company (the SDK and other such features collectively referred to as the "SDK"), in order to send, optimize and manage push notifications to users of its Properties, and to use other related functionality provided within the Properties intended for its use.
Licensee's Use of the SDK.
Licensee agrees that
its license to the SDK is subject to
the following conditions:
- Absent further agreement by the parties (which may be by email), Licensee will not use the SDK in connection with any App that constitutes or promotes illegal gambling, adult media (i.e., pornography), inflammatory religious content, violence, politically religious agendas and/or any known associations with hate, criminal and/or terrorist activities, discrimination, racism, harassment or hate speech against any individual or group, pirated content or content that violates a party's intellectual property rights, tobacco products, including e-cigarettes, firearms or ammunition, or any product that is illegal in the jurisdiction in or into which it is sold;
- Licensee will only use the SDK in connection with the Properties that it owns and operates, and shall not sell, sublicense, give, rent, loan, lease, or otherwise make the SDK or its components available to any third party without the Company's prior express written consent;
- Licensee shall not (i) alter, hide, or remove any copyright, trademark, or other intellectual property rights notice contained in the SDK; (ii) except as required to effectuate the rights granted under sub-section (iii) herein, reverse engineer, decompile, disassemble, or otherwise translate or derive the source code for the SDK, or attempt to do so;. (iii) use the SDK to create any software or service containing any malicious or harmful code; (iv) use the SDK to damage, detrimentally interfere with, surreptitiously intercept, or misappropriate any system or data; (v) use the SDK in violation of applicable law; (vi) circumvent or attempt to circumvent usage limits; or (vii) use the service at excessive levels that would degrade performance for other users
- Licensee may and hereby is permitted to create derivative works of the SDK provided that such derivative works shall be subject to the Modified MIT (Open Source) License available here.
- Licensee acknowledges and agrees that the Company may change the form and nature of the SDK at any time in the Company's sole discretion without advance notice to Licensee, and that future versions of the SDK may no longer be compatible with any given Property. Licensee acknowledges and agrees that Company may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to Licensee at any time in the Company's sole discretion without prior notice to Licensee.
- Nothing in this EULA permits Licensee to use any of the Company's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without the Company's prior express written consent.
- Term and Termination. This EULA shall commence as of the Effective Date and shall remain in effect until terminated as provided herein. Either Party terminate this EULA for any reason or for no reason at any time upon thirty (30) days' prior written notice to the other Party. Notwithstanding the foregoing, the Company may terminate this EULA immediately upon written notice to Licensee in the event the Company believes Licensee has breached Section 2 or 4 herein. Upon termination of this EULA, the license granted to the SDK pursuant to Section 1 shall immediately terminate and Licensee shall no longer have any rights to use the SDK. Licensee understands, however, that the collection of data by the SDK through Properties on which it is already integrated, and its use for purposes set forth herein, may continue until End Users have (a) removed or disabled the SDK (or any application that integrates the SDK) from their respective devices, or any application that integrates the SDK from your device, or (b) limited such data collection through applicable device settings in a manner that is communicated to Company.
- Compliance with COPPA : Licensee shall not use the SDK in conjunction with a Property that is directed to children under the age of 13. Licensee shall not use the SDK to knowingly send to Company personal information (as defined under COPPA), including device identifiers or precise location data, that has been received from children under the age of 13.
- Use and Ownership of SDK Data. Licensee acknowledges and agrees that the SDK enables Licensee to collect certain information from end users ("End Users") of the SDK's functionality (collectively, "SDK Information"), which generally helps provide developers with functionality to target and personalize the notifications they send to end users. This data collected includes: End Users' mobile advertising identifiers, such as Apple IDFAs and Android Advertising identifiers; End Users' email addresses End Users' IP address, device push token, precise location (e.g., GPS-level) data, network information, language, time zone, product preferences, and privacy preferences. The Parties shall jointly own the SDK Information, and each Party shall be entitled (without further compensation to the other) to use, share, market, license, sell, store, and otherwise exploit the SDK Information to the maximum extent permitted by law, which shall include using the SDK Information for cross-app, cross-device, and other interest-based advertising, analytics and market research. Without limiting the foregoing, neither Party shall use SDK Information for any of the following purposes: (a) employment eligibility, (b) credit eligibility, (c) health card eligibility, or (d) insurance eligibility, underwriting, or pricing.
The Parties agree to
comply with all applicable privacy
laws, and each respective party
agrees to perform the following
- Licensee is responsible for obtaining all applicable consents required to enable DigitalPUSH to collect information from End User's device or browser. Licensee shall publish privacy policies and disclosures for the Properties that comply with applicable law and the terms of this EULA, including, but not limited to, clearly disclosing that the SDK Information will be collected and how it may be used, as set forth in Section 5 above.
- Where Licensee provides data (such as IDFAs, Android Ad IDs, or location data) in a manner other than through Company's proprietary SDK, including without limitation through an API or an SDK proprietary to the Licensee, Licensee shall be responsible for ensuring ensure that any collection and transfer of data is done in compliance with user's stated preferences, including without limitation devices settings to "Limit Ad Tracking" and "Opt Out of interest-based ads."
- Licensee shall notify Company in writing of any further data usage or governance requirements, restrictions or limitations, to the extent they apply, in which case the Parties may execute a further, paid subscription plan setting out such limitations and licensing payments to supplement the terms herein.
- For purposes of this EULA, "Confidential Information" means and includes (a) the terms of this EULA, including any schedule, exhibit, attachment, or amendment hereto; and (b) all proprietary information, data, trade secrets, business information, and any other information disclosed, in writing, visually, or orally by or on behalf of a Party ("Discloser") to the other Party ("Recipient") or to which Recipient obtains access in connection with the negotiation or performance of this EULA that is marked as "proprietary," "confidential," "trade secret," or in some other manner to indicate that Discloser considers it to be commercially sensitive, or which a reasonable person would understand to be commercially sensitive. SDK Information shall not be Confidential Information, but rather shall be subject to Section 2 hereof. Confidential Information shall not include information that: (i) is already rightfully known to Recipient at the time it obtains Confidential Information from Discloser; (ii) is or becomes generally available to the public other than as a result of disclosure in breach of this EULA or any other confidentiality obligations; (iii) is lawfully received on a nonconfidential basis from a third party authorized to disclose such information without restriction and without breach of this EULA; (iv) is contained in, or is capable of being discovered through examination of, publicly available records or materials; or (v) is developed by a Party without the use of any Confidential Information provided by the other Party.
- Discloser's Confidential Information shall remain the property of Discloser, and Recipient shall not be deemed, by virtue of this EULA or any access to Discloser's Confidential Information, to have acquired any right, title, or interest in or to Discloser's Confidential Information. Recipient agrees: (a) to hold Discloser's Confidential Information in strict confidence; (b) to limit disclosure of Discloser's Confidential Information to Recipient's own employees and contractors who have a need to know Discloser's Confidential Information for the purposes of this EULA and who have been advised of, and are bound to observe and comply with, Recipient's obligations hereunder; (c) not to otherwise disclose any of Discloser's Confidential Information to any third party; (d) to use the Confidential Information solely and exclusively in accordance with the terms of this EULA in order to carry out its obligations and exercise its rights under this EULA; (e) to afford Discloser's Confidential Information at least the same level of protection against unauthorized disclosure or use as Recipient normally uses to protect its own information of a similar character, but in no event, less than reasonable care; and (f) to notify Discloser promptly of any unauthorized use or disclosure of Discloser's Confidential Information and to cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure.
- Notwithstanding anything to the contrary herein, in the event Recipient is required to disclose any of Discloser's Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a demand or information request from any regulatory authority, Recipient shall, unless prohibited by the terms of a subpoena, order, or demand: (a) promptly notify Discloser of the existence, terms, and circumstances surrounding such demand or request; (b) consult with Discloser on the advisability of taking legally available steps to resist or narrow such subpoena, order, or demand; and (c) if disclosure of such Confidential Information is required, exercise its reasonable best efforts to narrow the scope of disclosure and obtain an order or other reliable assurance that confidential treatment shall be accorded to such Confidential Information. To the extent Recipient is prohibited from notifying Discloser of such a subpoena, order, or demand, by the terms of same, Recipient shall exercise its reasonable efforts to narrow the scope of disclosure.
- Upon the termination of this EULA, Recipient shall promptly return (or destroy if directed by Discloser) all of Discloser's Confidential Information in its possession or in the possession of any employee or contractor of Recipient.
- Intellectual Property Rights. Each Party acknowledges and agrees that no intellectual property rights (including without limitation any rights based in trademark, copyright, patent or trade secret law) are or are intended to be transferred from one party to the other through this EULA. Neither Party shall receive, by virtue of this EULA or performance under it any ownership interest in the other's intellectual property. Without limitation of the above, Company may use the name and logo of Licensee solely in order to designate Licensee as a licensee or client, for marketing purposes (e.g., on its website or email marketing materials).
Representations and Warranties.
Each Party represents
- to the extent it is a corporation, it is duly incorporated and in good standing under the laws of the state of its incorporation;
- it has the right, power, and authority to enter into this EULA, grant the rights granted by it herein, and perform its obligations without any additional consent or approval;
- it has not relied and shall not rely upon the other Party for legal advice regarding its compliance with applicable law;
- the execution and performance of this EULA shall not violate or conflict with the terms or conditions of any other agreement to which it is a party or by which it is bound; and
- it shall, and shall ensure that its employees and contractors, comply at its or their own expense, with applicable law, including, without limitation, applicable law governing privacy and data security.
- No Warranty THE SDK IS BEING PROVIDED TO LICENSEE ON AN "AS-IS" AND "AS AVAILABLE" BASIS. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SDK OR THE RESULTS OBTAINED FROM ITS USE SHALL MEET THE REQUIREMENTS OR BUSINESS NEEDS OF LICENSEE OR ITS CUSTOMERS OR THAT THE SDK'S OPERATION SHALL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY MAKES NO REPRESENTATIONS AND WARRANTIES UNDER THIS EULA, AND HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, RELATING TO THE SDK, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE OR NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- Limitations of Liability IN NO EVENT SHALL THE COMPANY, WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE, BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS EULA; OR (B) ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS EULA TO THE EXTENT THAT THE AGGREGATE AMOUNT OF SUCH DAMAGES EXCEEDS THE GREATER OF (X) ALL AMOUNTS PAID BY ONE PARTY TO ANOTHER DURING THE SIX MONTHS PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE CLAIM AND (Y) $1500.
- Force Majeure. Except for payment obligations, neither Party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such Party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures. Each Party shall promptly notify the other Party upon becoming aware that any such event has occurred or is likely to occur and shall use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this EULA.
- Indemnification by the Company The Company agrees to indemnify, defend, and hold Licensee and its affiliates and their respective directors, officers, employees, and agents (collectively "Indemnified Licensee Persons") harmless from and against any damages, awards, judgments, settlement amounts, fines, penalties, losses, costs, and expenses (including reasonable legal fees and expenses and costs of investigation) and other liabilities (collectively, "Losses") arising out of any lawsuit, action, claim, demand, administrative action, arbitration, or other legal proceeding brought or asserted against any Indemnified Licensee Person as a result of or in connection with: (a) Company's breach of any covenant or representation herein, or (b) any allegation that the use of the SDK infringes or misappropriates an effective U.S. patent a U.S. registered trademark, a U.S. copyright or a trade secret; provided, however, that the Company shall have no obligation to any Indemnified Licensee Person under this Section 13 to the extent such claim arises from: (i) use of the SDK in a manner or for a purpose not specifically authorized under this EULA; (ii) any modification, change, amendment, customization, or adaptation of the SDK not made wholly by the Company or any of its designees; (iii) any modification, change, amendment, customization, or adaptation of the SDK made by the Company at Licensee's request; (iv) Licensee's failure to implement any corrections, updates, or changes to the SDK provided by the Company; or (v) Licensee's breach or alleged breach of Section 2 of this EULA. If Licensee's use of the SDK becomes (or is likely to become) the subject of a third-party infringement claim, the Company may, at its expense and option: (x) procure for Licensee the right to continue to use the SDK; (y) replace or modify the SDK so that it becomes non-infringing; or (z) immediately terminate this EULA.
- Notice and Defense. For any claim under this Section 13, (a) the indemnified party shall provide the indemnifying party with prompt written notice of such claim; (b) the indemnifying party shall have the right and authority to control and direct the investigation, defense, and settlement of the claim; (c) the indemnifying party shall have no liability for any settlement or agreement entered into by the indemnified party without the indemnifying party's prior written consent; and (d) the indemnified party shall provide such cooperation and assistance as may be reasonably requested by the indemnifying party in connection with the investigation, defense, or settlement of the claim.
- Notices. All notices, requests, and approvals required by a Party under this EULA shall be in writing addressed/directed to the other Party at the address set forth below. All such notices, requests, and approvals shall be deemed given upon the earlier of receipt of facsimile or email transmission during the normal business day or actual receipt thereof. In the event of use of email notice, the sender shall request a read receipt or also send a hard copy by regular mail to ensure delivery. All such notices, requests, and approvals shall be addressed to the attention of the signatory parties, or such other party that either party has designated in a separate writing as the appropriate notice recipient:
- Governing Law. This EULA shall be governed by the laws of the State of California without regard to choice of law principles.
- Arbitration. Any controversy or claim arising out of or in any way connected with this EULA between the Parties shall be resolved by one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association and shall be held in San Francisco County, California. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Costs of any arbitration shall be shared equally by the parties to the arbitration.
- Assignment. Licensee may not assign or delegate any rights or obligations under this EULA to any third party without the Company's prior written consent. Notwithstanding the foregoing, either Party may assign this EULA (along with all rights and obligations under it) to any of its corporate affiliates, parents or subsidiaries, or in conjunction with the sale or transfer of all or substantially all of its assets associated with performance under this EULA, provided that the assigning party shall provide timely notice of such assignment.
- Amendment. No modification of this EULA or waiver of the terms and conditions hereof shall be binding upon the Parties unless approved in writing by each of the Parties.
- Relationship of the Parties. The Parties agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this EULA or in the working relationship being established and developed hereunder shall be deemed, nor shall it cause, the Parties to be treated as partners, joint venturers, or otherwise as joint associates for profit.
- No Waiver. Except as otherwise provided herein, the failure of either Party to enforce at any time the provisions of this EULA shall not be constituted to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter.
- Severability. If any provision of this EULA is held invalid or unenforceable at law, such provision shall be deemed stricken from this EULA and the remainder of this EULA shall continue in effect and be valid and enforceable to the fullest extent permitted by applicable law.
- Entire Agreement. This EULA is the entire agreement between the Parties and supersede any and all prior understanding, agreements, or representations by or between the Parties, written or oral, which may have related to the subject matter hereof. There are no third party beneficiaries to this EULA.
- Survival. Sections 3, 5, 7-8, 10-11 and 13-14 shall survive termination of this EULA, to the extent contemplated by their terms.