DEVELOPMENT LICENSE AGREEMENT
This Development License Agreement (“Agreement”) is made by and between Wivity Inc. (“Wivity”) and any person or entity (“Developer” or “You”) who purchases a Wivity Modem Development Kit (“Device”) and develops or authorizes development using the Device. The Device, the provided connectivity, and Wivity’s software services are collectively the “Service”. Wivity and Developer are collectively referred to as the “parties”.
BY CLICKING THE PURCHASE BUTTON, PURCHASING THE DEVICE, ACCESSING THE DEVELOPER PORTAL, OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT CLICK THE PURCHASE BUTTON, AND YOU MUST NOT USE THE SERVICE.
- License to Use Device, Software and Developer Portal. Subject to the terms of this Agreement and the timely payment of all applicable fees, Developer is granted a nontransferable, revocable, nonexclusive license during the term to use the Device, to access Wivity’s developer portal (“Developer Portal”), to download software available through the Developer Portal (“Software”), and to modify the Software for the purpose of developing permitted uses and applications for the Device for use by authorized consumers. Any acquisition or use of the Device, Software, or access of the Developer Portal for any other reason, including but not limited to intended competition with Wivity, is prohibited by this Agreement. Wivity may periodically revise its Software and shall provide notice of such revisions to Developer through updates within the Developer Portal.
- Trademark License. Subject to the terms of this Agreement and the timely payment of all applicable fees, Wivity grants to Developer a limited, nontransferable, revocable, nonexclusive license to use its trademarks (the “Marks”), for the limited purpose of promoting the permitted uses Developer makes of the Device and the Software, provided that Developer agrees to use the Marks in strict compliance with the trademark usage guidelines available at __________ [insert link or exhibit reference] as may be modified by Wivity from time to time, and agrees not to use the Marks in conjunction with any non-permitted use or in conjunction with any product, software or service other than that belonging to Wivity and licensed hereunder.
- Reservation of Rights. All rights not expressly granted by Wivity are reserved to it.
Limitations & Restrictions
- As to Device. Developer shall not tamper with, disassemble, reverse engineer, physically modify or otherwise alter the Device in any manner whatsoever without Wivity’s express prior written consent. Developer acknowledges that the Device transmits via a communications network subject to ownership and oversight by third parties, including but not limited to the Federal Communications Commission, and is therefore subject to strict regulations regarding functionality and operation. Developer acknowledges that any modification of the Device or the Device’s operation or capacity without prior written consent is a material breach of this Agreement. Further, Developer agrees not resell or transfer the Device without Wivity’s prior written consent.
- As to Software. Except as expressly authorized herein, Developer shall not remove, modify or otherwise tamper with notices or legends on any component of the Software. Further, Developer shall comply with any license terms provided in the Developer Portal that apply to the use or application of any third party software provided by Wivity, as well as any terms provided by any third party software independently used in connection with either the Device of the Software by Developer.
As to Use of Connectivity. Developer shall never use the Device, the Software, and/or the Device’s functionality to send via the Device’s connectivity any instructions, direction, programming, information, data or files which:
- store or transmit libelous or otherwise unlawful material;
- store or transmit information in breach of any third party’s privacy rights;
- disrupt or could disrupt or interfere with the integrity of any wireless network or airwave;
- gain or attempt to gain access to any wireless network on which the Device broadcasts or operates;
- alter the functionality or operation of the Device or may in any way interfere with the Device’s compliance with existing operational standards or programming;
- in any other manner violates applicable export or import laws or regulations including but not limited to laws governing communications, the Foreign Corrupt Practices Act, the UK Bribery Act, restrictions on U.S. embargoed countries, the U.S. Treasury Department’s list of Specially Designated Nationals, and the U.S Department of Commerce’s Denied Persons’ List or Entity List;
- may negatively impact Wivity’s goodwill; or
- will expose Wivity to additional obligations or liability.
- Prohibited Uses of Service. Developer is solely responsible for any and all acts and omissions that occur under Developer’s account or password with regard to access to the Services generally, and Developer agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (b) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (c) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (d) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (e) disseminate, store or transmit viruses, Trojan horses or any other malicious code or program; or (f) engage in any other activity deemed by the Wivity to be in conflict with the spirit or intent of this Agreement.
Developer’s failure to pay any and all fees when due and/or failure to arrange for additional connectivity through Wivity and/or its required vendors may result in the Device’s inoperability.
- Developer Representations
Developer represents and warrants to Wivity that: (a) Developer has the power and authority to enter into and perform Developer’s obligations under this Agreement, including the authority to act on behalf of any entity on whose behalf Developer will develop the Software for use in conjunction with the Device; (b) all information provided by Developer to Wivity is truthful, accurate and complete; (c) Developer shall comply with all terms and conditions of this Agreement; (d) Developer has provided and will provide accurate and complete information about itself, including, without limitation, Developer’s legal name, address and telephone number; and (e) Developer shall use the Services for Developer’s own purposes and not on a time share, service bureau or commercial resale basis; provided, however, that Developer may also use the Services for an individual client for whom it is providing services.
This Agreement is effective upon Developer’s acceptance as set forth herein and shall continue in full force until terminated. Developer may terminate this Agreement for any reason, but shall remain responsible for any fees incurred with Wivity and/or third parties prior to termination. Wivity reserves the right, in its sole discretion and without notice, at any time and for any breach or reasonably believed breach of this Agreement, to: (a) remove or disable access to all or any portion of the Service including the Developer Portal; (b) suspend Developer’s access to or use of all or any portion of the Service including the Developer Portal; and (c) terminate this Agreement.
- Intellectual Property Ownership
The parties agree that Wivity or its licensors own all aspects of the Service including, without limitation, all intellectual property rights in and to the Device, Software, Developer Portal, and connectivity. Developer acknowledges that Wivity is the owner of certain utility patents with regard to the Device and Software applications and that Wivity owns additional trademark, copyright and trade secret rights in its properties. Developer shall not challenge or assert ownership of any aspect thereof. Developer agrees to comply with all legends or use restrictions that appear on or in association with the Device, Software, Developer Portal, or which are later provided by Wivity to Developer.
Each party may be exposed to certain information concerning the other party’s business, including by way of example, the particulars of the Device or Software’s functionality, the instructions and information provided by Wivity through the Developer Portal in their entirety, and any work product, or other technical or business information that the receiving party knows or should know is the disclosing party’s confidential and proprietary information (herein “Confidential Information”). Each party agrees that it will not: (i) use the disclosing party’s Confidential Information for any purpose other than to perform its obligations under this Agreement and to obtain the benefits thereof and not for any other purpose; or (ii) disclose to any third party any of the disclosing party’s Confidential Information without the prior written consent of the disclosing party. A receiving party may disclose the disclosing party’s Confidential Information only to its employees or contractors as is reasonably necessary to allow such party to perform under this Agreement and to obtain the benefits thereof and not for any other purpose; provided that each such employee is under a written obligation of nondisclosure which protects the disclosing party’s Confidential Information under terms substantially similar to those herein. Confidential Information shall not include any information that is: (a) already in the possession of the receiving party or its subsidiaries without an obligation of confidentiality; (b) independently developed by the receiving party or its subsidiaries without use of the other party’s Confidential Information; (c) publicly disclosed by the disclosing party; (d) rightfully received by the receiving party or its subsidiaries from a third party; or (e) approved for release by written agreement with the disclosing party. Confidential Information may be disclosed by the receiving party pursuant to the requirement or request of a governmental agency to the extent such disclosure is required by operation of law, regulation or court order; provided, however, that the receiving party will use its best efforts to minimize such disclosure and will consult with and assist the disclosing party in obtaining a protective order prior to such disclosure.
- Disclaimer of Warranties
EXCEPT AS PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT DEVELOPER’S SOLE RISK. WIVITY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE, THE SPEED OF CONNECTIVITY, THE AVAILABILITY OF CONNECTIVITY, OR UPTIME OF THE SERVICE. WIVITY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
- Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL WIVITY BE LIABLE TO DEVELOPER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR CONNECTIVITY TO THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, DEVELOPER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL WIVITY’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY DEVELOPER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO DEVELOPER. IF DEVELOPER IS DISSATISFIED WITH THE SERVICE, DEVELOPER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR DEVELOPER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.
- Wivity agrees to indemnify, hold harmless and defend Developer against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to the operation and use of the Device, provided that Developer’s use of the Device is in compliance with the terms of this Agreement. Wivity’s obligation to indemnify hereunder is subject to Developer: (i) giving Wivity prompt written notice of any such claim; (ii) giving Wivity sole control over the defense and settlement of any such claim; (iii) providing full cooperation for the defense of any such claim, at Wivity’s expense; and (iv) not entering into any settlement or compromise of any such claim without Wivity’s prior written approval. Upon notice of an alleged infringement or if in Wivity’s opinion such a claim is reasonably likely, Wivity will have the option, at its own discretion and expense, to (w) procure for Developer the right to continue using such Device, Software or Service, (x) replace any elements of such Service with non-infringing hardware and software of similar quality and purpose, (y) modify any elements of such Service to make it non-infringing, or (z) terminate the Agreement and return to Developer the depreciated value of such Service based on straight line depreciation over three (3) years. THIS SECTION 10 SETS FORTH WIVITY’S SOLE AND EXCLUSIVE LIABILITY AND DEVELOPER'S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT BY THE SERVICE OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
- Developer agrees to indemnify, hold harmless and defend Wivity, its shareholders, directors, officers, employees, agents, and parent and affiliate companies from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) Developer’s use of the Service, including any data or work transmitted or received by Developer; and (c) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by Developer which is prohibited as unacceptable at Section 2.
- Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- Wivity shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to Developer by email at the address provided to Wivity by Developer. Developer’s access to or use of the Service after the date such amended terms are delivered to Developer shall be deemed to constitute acceptance of such amended terms.
- Assignment. Developer may not assign its rights under this Agreement without Wivity’s prior written consent. Wivity may assign its rights under this Agreement without restriction to any acquiring company.
- Jurisdiction and Disputes. This Agreement shall be governed by the laws of the State of California. All disputes hereunder shall be resolved in the applicable State or Federal courts of the County of San Francisco, State of California. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available. The parties irrevocably waive the right to trial by jury.