SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT
NOTICE TO ALL USERS: PLEASE READ THIS CONTRACT CAREFULLY. BY INSTALLING OR USING THE SOFTWARE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR INDEMNIFICATION OBLIGATIONS, DO NOT INSTALL OR USE THE SOFTWARE DEVELOPMENT KIT.
a. “Software Development Kit” or “SDK” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media (including electronic media), or such contents as are hosted by Townsend or its distributors, resellers, OEM/MSP partners, or other business partners on behalf of Townsend (collectively “Authorized Partner(s)”), including but not limited to (i) Townsend or third party computer information, software, and code samples, and (ii) related explanatory materials in printed, electronic, or online form (“Documentation”); and (b) upgrades, modified or subsequent versions and updates of SDK, if any, licensed to you by Townsend or an Authorized Partner.
b. “Use” or “Using” means to access, install, download, and make a reasonable number of copies of the SDK, and incorporate the SDK in your proprietary software Applications.
c. “Townsend” means Townsend Security, Inc., a Washington corporation, with offices located at 724 Columbia Street NW, Suite 400, Olympia, WA 98501, USA.
2.) License Grant. Subject to the terms and conditions of this Agreement, Townsend hereby grants you a non-exclusive, non-transferable license to Use the SDK, subject to any further restrictions or usage terms specified herein or in the Documentation. To the extent source code is provided as part of the SDK, you may modify and compile the source code solely for the purpose of developing your Applications. Some third party materials included in the SDK may be subject to other terms and conditions, which are typically found in a “Read Me” file.
3.) Distribution. You may distribute the Applications you develop Using the SDK only to end users (“End Users”), subject to the terms of this Agreement and provided you do not distribute any part of the incorporated SDK software in source code form.
4.) End User License. You shall distribute the Applications to End Users only under the terms of end user license agreements between you and the applicable End User with terms at least as restrictive and protective of Townsend as those set forth in the end user license agreement found on the Townsendsecurity.com website (“EULA”). You shall use commercially reasonable efforts to enforce each EULA with at least the same degree of diligence used in enforcing similar agreements governing others. You shall promptly notify Townsend of any breach of a material obligation under a EULA affecting any portion of the SDK, and reasonably cooperate with Townsend in any legal action to prevent or stop unauthorized use, reproduction, or distribution of any SDK.
5.) Support. Townsend may provide you with technical support, including minor updates to the SDK, all in accordance with Townsend’s then current, applicable Maintenance Policy located on the Townsendsecurity.com website. By using the SDK you agree to the terms, conditions and limitations described in the Maintenance Policy. Townsend shall have no obligation to provide support directly to any End User.
6.) Term. This Agreement is effective for one year from the date of purchase, unless earlier terminated as set forth herein. Thereafter, this Agreement will automatically renew for subsequent one (1) year terms unless either party provides written notice of its intent to terminate this Agreement at least sixty (60) days prior to the end of the then current term. This Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must cease use of the SDK and destroy all copies of the SDK including the Documentation.
7.) Ownership Rights. The SDK is protected by United States’ and other copyright laws, international treaty provisions and other applicable laws in the country in which it is being used. Townsend and its suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Your possession, installation, or use of the SDK does not transfer to you any title to the intellectual property in the SDK, and you will not acquire any rights to the SDK except as expressly set forth in this Agreement. Any copy of the SDK and Documentation authorized to be made hereunder must contain the same proprietary notices that appear on and in the SDK and Documentation.
8.) Evaluation Product Additional Terms. If the product you have received with this license has been identified as “Evaluation” SDK or “Beta” SDK, then the provisions of this section apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Evaluation or Beta SDK (hereafter collectively referred to as “Beta Software”), but only to the extent necessary to resolve the conflict. You acknowledge that the Beta Software may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, Beta Software is provided to you “AS-IS”, and Townsend disclaims any warranty or liability or obligations to you of any kind. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, TOWNSEND’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL. You acknowledge that Townsend has not promised or guaranteed to you that Beta Software will be announced or made available to anyone in the future, that Townsend has no express or implied obligation to you to announce or introduce Beta Software, and that Townsend may not introduce a product similar to or compatible with any Beta Software. Accordingly, you acknowledge that any research or development that you perform regarding the Beta Software or any product associated with the Beta Software is done entirely at your own risk. During the term of this Agreement, if requested by Townsend, you will provide feedback to Townsend regarding testing and use of the Beta Software, including error or bug reports; you agree to grant Townsend a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute, make derivative works and incorporate the feedback into any Townsend product at Townsend’s sole discretion. If you have been provided Beta Software pursuant to a separate written agreement, your use of the Beta Software is also governed by such agreement. Upon receipt of a later unreleased version of the Beta Software or release by Townsend of a publicly released commercial version of the Beta Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Beta Software received from Townsend and to abide by the terms of the End User License Agreement for any such later versions of the Beta Software. Your Use of the Beta Software is limited to 30 days unless otherwise agreed to in writing by Townsend.
9.) Restrictions. Your use of the Software must at all times comply with applicable laws and regulations. You may not sell, lease, license, rent, loan, resell or otherwise transfer, with or without consideration, the SDK. You may not permit third parties to benefit from the use or functionality of the SDK via a timesharing, service bureau or other arrangement. You may not reverse engineer, decompile, or disassemble the SDK, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon, the SDK in whole or in part other than as necessary to develop the Applications. You may not copy the SDK or Documentation except as expressly permitted in this Agreement. You may not remove any proprietary notices or labels on the SDK. All rights not expressly set forth hereunder are reserved by Townsend.
10.) Warranty Disclaimer.
THE SDK IS PROVIDED “AS IS” AND TOWNSEND MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, TOWNSEND, ITS SUPPLIERS AND AUTHORIZED PARTNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SDK TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SDK. WITHOUT LIMITING THE FOREGOING PROVISIONS, TOWNSEND MAKES NO WARRANTY THAT THE SDK WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SDK WILL MEET YOUR REQUIREMENTS.
11.) Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. This limitation shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Townsend is acting on behalf of its suppliers and Authorized Partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
12.) Licensee Warranty. You represent and warrant to Townsend that you will not use the SDK (a) in any manner that infringes, violates or misappropriates any third party’s intellectual property rights; or (b) in a way that is otherwise illegal or promotes illegal activities. You are solely responsible for use of the SDK by your employees and others.
13.) Notice to United States Government. The SDK and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the SDK and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Manufacturer is Townsend.
14.) Export Controls. You acknowledge that the SDK is subject to the export control laws and regulations of the United States of America (“US”). You shall not export or re-export the SDK, directly or indirectly, to (i) any countries that are subject to US export restrictions; (ii) any end user known, or having reason to be known, to intend to utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any Specially Designated National or other end user who has been prohibited from participating in transactions by any federal agency of the US government. You further acknowledge that SDK may include technical data subject to export and re-export restrictions imposed by US law.
15.) High Risk Activities. The SDK is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the SDK could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). TOWNSEND EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
16.) Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Washington. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The venue for any dispute arising under this Agreement will lie exclusively in Thurston County, Washington.
17.) Free Software. This product includes or may include some software programs (“Free Software”) that are licensed (or sublicensed) to the user under the Apache License (http://www.apache.org/licenses/LICENSE-2.0), or other similar software licenses which, among other rights, may permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code. These licenses may require that the source code be made available to users of any software covered by the license. For any such software, the source code is made available in a designated directory created by installation of the Software, or designated internet page, or at the Townsend address below. The terms of any Free Software licenses are applicable only to the Free Software.
18.) Intellectual Property Indemnifications. Townsend shall defend any legal claim instituted against you alleging that the SDK directly infringes any U.S. patent, trade secret, trade mark or copyright existing or issued as of the Effective Date, provided that you (i) promptly notify Townsend in writing of such claim; (ii) grant Townsend sole control of the defense and settlement of such claim; and (iii) provide all assistance, information and authority required for the defense and settlement of the claim. Townsend’s obligations under this Section will not apply with respect to any software that is: (i) modified by any person other than Townsend where such alleged infringement relates to such modification; (ii) combined with other software or hardware not provided by Townsend where the alleged infringement relates to such combination; (iii) used other than in accordance with this Agreement; (iv) used in any manner incident to an infringement not resulting primarily from the Townsend product; or (v) created by Townsend in accordance with designs, plans or specifications requested by you where the requested designs, plans or specifications gave rise to the alleged infringement. In addition, Townsend’s obligations hereunder will not apply to any alleged infringement occurring after you have received notice of such suit or proceeding unless Townsend has given written permission for such continuing infringement.
If the SDK is held to infringe any intellectual property right and its use or sale enjoined, or if in the opinion of Townsend any software in the SDK is likely to become the subject of such a claim of infringement, Townsend may, in its sole discretion and at its own expense and as your sole and exclusive remedy, either procure a license that will protect you against such claim without cost to you, or replace the SDK with non-infringing software, or require return of the SDK.
You shall defend any legal claim instituted against Townsend alleging that an Application, or any portion thereof other than the unaltered SDK, infringes any patent, trade secret, trade mark, or copyright.
19.) Confidentiality. Except (i) in connection with a sale of substantially all of the party’s assets, merger, or similar corporate transaction, (ii) for tax purposes and to satisfy other legal or regulatory requirements, and (iii) as necessary to negotiate and implement the terms of this Agreement, to internal and external advisors and employees under obligations of confidentiality, you agree to not disclose to third parties any confidential information exchanged in connection with this Agreement, including without limitation the pricing for the SDK. You acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of such information and that Townsend shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
20.) Miscellaneous. This Agreement sets forth all rights for the user of the SDK and is the entire Agreement between the parties. This Agreement supersedes any other communications, representations or advertising relating to the SDK. This Agreement may not be assigned or modified except by a written addendum issued by a duly authorized representative of Townsend. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Townsend. No third party is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. This Agreement is written in English. Any translation of this Agreement is for your convenience, and is not binding on Townsend. The original English version of this Agreement shall control in case of any conflict with a translated version.
21.) Privacy. You shall not, under any circumstances, send or provide to Townsend any Personally Identifiable Information about its customers or any other person, including without limitation address, social security number, date and place of birth, mother‘s maiden name, or biometric records, or any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.
22.) Townsend Customer Contact. If you have any questions concerning these terms and conditions, or if you would like to contact Townsend for any other reason, please call (360) 359-4400, FAX to (360) 357-9047, or write: Townsend Security, Inc., Attention: Customer Service, 724 Columbia Street NW, Suite 400, Olympia, WA 98501. Alternatively, you may contact Townsend at firstname.lastname@example.org or at the local number listed on townsendsecurity.com.
23.) Notices and Requests. Unless otherwise noted in this Agreement, all notices, authorizations, and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by air express courier, charges prepaid; and addressed to the last known address of a party.