This Software End User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) and Appodeal, Inc., a Delaware corporation (“Appodeal” or “Company”) regarding the use of Company’s software development kit, which may include user documentation provided in online or electronic form, object code, interface declarations, assemblies, and sample source code (the “Software”).
By filling in the user information and clicking the button marked “Accept terms and sign up,” you agree to be bound by the terms of this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE “ACCEPT TERMS AND SIGN UP” BOX. YOU WILL NOT BE PROVIDED THE SOFTWARE UNLESS AND UNTIL YOU HAVE AGREED TO BE BOUND BY THESE TERMS.
Grant of License
Subject to these Terms, you are granted, a nonexclusive, nontransferable, worldwide, royalty-free right and license to use, copy and distribute the Software in conjunction with the distribution of your own products (the “Products”) and a nonexclusive, nontransferable, worldwide, royalty-free right and license to use the relevant and necessary components of the Software solely to incorporate the Software into the Products
Intellectual Property Rights
You understand and agree that Appodeal and its suppliers retain all legal rights, title and interest (toinclude but not limited to patent, copyright, trademark, trade secret and moral rights) globally to any intellectual property included in the Software, including, without limitation, all copyrights and other intellectual property rights therein. You may not use, copy, or distribute the Software without authorization. All rights are reserved.
You are expressly prohibited from: (a) modifying, creating derivative works of, reverse engineering, reverse compiling, or disassembling the Software; (b) distributing, selling, leasing, renting, lending, or sublicensing any part of the Software to any third party except as expressly provided herein and as necessary to distribute any Products; (c) using the Software to develop software to upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware;
In addition, you may not represent that the Products are certified or otherwise endorsed by Company, and you may not use the Company name or any other trademarks or service marks of Company in connection with the Products.
You and your authorized users may provide Appodeal with feedback on the Software including, without limitation, feedback on bugs and faults within or relating to the Software, or suggestions for improvements or other changes to all or any portion of the Software. You agree that Appodeal shall own all feedback, ideas, concepts and changes to any portion of the Software developed or identified in the course of or as a result of your use of the Software and all associated intellectual property rights (“Feedback Results”), and you hereby assign to Appodeal all of your right, title and interest thereto. You will not knowingly provide Feedback Results that are subject to third party intellectual property rights. You agree to cooperate fully and to ensure that your employees, officers, independent contractors and your authorized users cooperate fully with Appodeal with respect to signing further documents and doing such other acts as are reasonably requested by Appodeal to confirm that Appodeal owns the Feedback Results, and to enable Appodeal to register and/or protect any associated intellectual property rights and/or confidential information.
You agree that the Software is confidential and proprietary information of Appodeal (“Confidential Information”). Confidential Information does not include information (i) that is or becomes public knowledge or is received by either party without any breach of any confidentiality obligation; (ii) that the receiving party can document was independently developed without use or access to the Confidential Information; or (iii) that the receiving party can document was previously known prior to receipt of the Confidential Information.
You agree to (i) use the Confidential Information only in connection with fulfilling your obligations and exercising your rights under this Agreement; (ii) hold the Confidential Information in strict confidence and exercise due care with respect to its handling and protection, consistent with your protection of your own confidential information but not less than reasonable care, (iii) not publish or disclose the Confidential Information except for disclosures to employees and subcontractors who have a bona fide need to know the Confidential Information.
You agree that any unauthorized disclosure of the Confidential Information would cause irreparable harm and that in the event of any breach or threatened breach of the above confidentiality obligations, Appodeal shall be entitled to obtain equitable relief in addition to any other remedy.
No Support or Software Maintenance
Appodeal may, but is under no obligation to, provide any support or subscription services for the Software or any services from Company in connection with the Software.
This Agreement shall continue as long as you are in compliance with the terms specified herein or until otherwise terminated. You and/or Appodeal may terminate this Agreement for any reason at any time. You agree, upon termination, to destroy all copies of the Software within your possession or control. The Confidentiality, Indemnification, Warranty Disclaimer, Limitation of Liability, and Miscellaneous sections set out in this Agreement shall survive any termination of this Agreement.
APPODEAL DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE USE OF THE SOFTWARE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OR WARRANTIES THAT THE SOFTWARE WILL BE ACCURATE, FREE OF ERRORS OR DEFECTS, FREE OF VIRUSES OR CONTAMINATION, UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. THE SOFTWARE IS PROVIDED “AS-IS”. YOU ASSUME ALL RISK ASSOCIATED WITH YOUR USE OF THE SOFTWARE . YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM THE INFORMATION CONTAINED IN OR COMPILED BY THE SOFTWARE. YOU ASSUME ALL RESPONSIBILITIES FOR SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. YOUR SOLE REMEDY AGAINST APPODEAL FOR DISSATISFACTION WITH THE SOFTWARE OR FOR ANY DAMAGE CAUSED THEREBY IS TO STOP USING SUCH SOFTWARE. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
Limitation of Liability
YOU AGREE NOT TO TAKE ANY LEGAL ACTION OR MAKE ANY CLAIM AGAINST APPODEAL OR ANY OF ITS SUPPLIERS IN RELATION TO THE SOFTWARE AND/OR YOUR USAGE THEREOF. FURTHERMORE YOU AGREE NOT TO SUPPORT ANY SUCH ACTIONS OR CLAIMS BY ANY OF YOUR CUSTOMERS WHO MAY RECEIVE THE SOFTWARE AS PART OF YOUR PRODUCTS.
YOU ACKNOWLEDGE AND AGREE THAT ANY USE OR DISSEMINATION BY YOU OF THE SOFTWARE IS YOUR SOLE RESPONSIBILITY AND AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT APPODEAL BEARS NO LIABILITY OR RESPONSIBILITY FOR SUCH USE OR DISSEMINATION. AS SUCH, EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL APPODEAL BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, TO INCLUDE DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, WHETHER RELATED TO BUSINESS INTERRUPTION/WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER MALFUNCTION OR FAILURE OR OTHERWISE. EVEN IF APPODEAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION EXCEED $50. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL REMEDY.
YOU AGREE TO FULLY INDEMNIFY AND HOLD HARMLESS APPODEAL, ITS DIRECTORS, OFFICERS AND EMPLOYEES, AGAINST ANY AND ALL CLAIMS, TO INCLUDE ATTORNEYS’ FEES, MADE REGARDING (I) YOUR USE OF THE SOFTWARE, (II) ANY APPLICATION YOU DEVELOP THEREFROM, (III) ANY INTELLECTUAL PROPERTY INFRINGEMENT CLAIM THAT ARISES FROM YOUR USE OF THE SOFTWARE AND ANY APPLICATION DEVELOPED THEREFROM, AND/OR (IV) YOUR BREACH OF THIS AGREEMENT.
Government End Users
The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation” as that term is used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable (the ‘Regulations”). Consistent with the Regulations, the Software is being licensed to U.S. Government end users (a) only as commercial items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
You acknowledge and agree that you will not import, export, or re-export, directly or indirectly, any commodity (including, without limitation, the Software or related information) to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States. You further agree to defend, indemnify and hold harmless Appodeal, its affiliates and their respective directors, officers, employees, agents and representatives from any losses, costs, claims or other liabilities arising out of your breach of this section.
This Agreement is governed by the laws of the United States and the State of California, without reference to conflict of laws principles. Any dispute between you and Company regarding this Agreement will be subject to the exclusive venue of the state and federal courts in the Northern District of California.
No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized Appodeal representative, and no single waiver will constitute a continuing or subsequent waiver. If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties with respect to your use of the Software.
Changes to the Agreement
Appodeal shall have the right to unilaterally change or add to the terms of this Agreement at any time upon notice by any means Appodeal determines in its discretion to be reasonable, including sending you an email notification, or by simply referencing a posted, newly revised version of the Agreement on its website. It is your responsibility to review the most updated version thereof. By continuing to use the Software following such modifications, you agree to be bound by such modifications.