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LIMITED DISTRIBUTION SDK LICENSE AGREEMENT
Please read this Limited Distribution SDK License Agreement ("Agreement") carefully because it represents your legally binding agreement with Bump Technologies, Inc. ("we," "us" or "Bump") in connection with your use of the Service, the Software and the Evaluation Guide (as defined below) with your Application. You will be referred to herein as "you" or "Licensee."
Bump has developed and is developing certain software products for mobile devices and a hosted service infrastructure for the software.
You have previously obtained a license to the Bump Software, APIs and Service under that certain Internal Use SDK License Agreement ("Development Agreement") and wish to obtain from Bump a license to (i) market, distribute and sell one or more Applications to end users, and (ii) allow end users to use the Service in connection with the Application, each under the terms of this Agreement. This Agreement will supplement your rights under the Development Agreement to allow you to distribute the Application subject to the restrictions contained below.
You understand that if you cannot comply with restrictions contained in this Agreement, you should not accept this Agreement. If at any time in the future you do not agree with all the terms and conditions of this Agreement (including any revisions thereto), you must immediately discontinue your use of the Software and Service. If you would like to develop an Application, but cannot comply with these restrictions, you should contact bump at email@example.com
By clicking "I Agree" on this page, you are agreeing that (i) you are over 18 years of age, (ii) you are authorized to enter into this Agreement and (ii) that you agree to all of the terms and conditions of this Agreement and your rights and obligations hereunder.
1. Definitions. Capitalized terms not defined herein shall have the meaning given them in the Development Agreement.
1.1. "Application" shall mean any software application which includes (i) any portion of Bump's Software and (ii) Licensee's software code and which adds significant functionality to the Software and Service.
1.2. "Distribution Key" means a key or other code which, when inserted into the Software, will allow an Application to work with the Service subject to the terms and conditions of this Agreement.
2. Allocation of Responsibilities.
2.1. Delivery. Bump will deliver the Distribution Key by electronic transmission or providing you with a secure server from which you may download the Distribution Key.
2.2. Support; Modifications. You shall be solely responsible for all support to end users of your Application. We may provide you with support for the Software and/or updates or modifications to the Software or Service from time to time, but are not obligated to do so. If we choose to provide you support, such decision may be made in our sole discretion. You are strongly encouraged to incorporate any new version of the Software into your Application within 180 days of release. Bump will support each version of the Software for at least 180 days after the release of an updated version, but after such time, may discontinue functions or features used by prior versions.
2.3. No Other Obligation. Nothing contained in this Agreement shall be construed as obligating either party to enter into any other agreement for the Software or Service.
3. License Grant; Marketing.
3.1. License Grant. In addition to the rights granted under the Development Agreement, subject to your compliance with the terms of this Agreement and the Development Agreement, Bump hereby grants to you a nonexclusive, nontransferable, royalty-free and fully-paid-up license, without rights to sublicense (except in connection with (ii) below), to use the Software and Service for the term of this Agreement, (i) to market and support one or more Applications, and (ii) to distribute and sublicense the Software as part of an Application.
3.2. General Restrictions. You agree that you and your employees shall not, directly or indirectly, (a) sell, lease, assign, sublicense or otherwise transfer, (b) disclose, divulge or otherwise make available to any third party, or (c) use except as authorized by this Agreement, the Development Key. You agree not to distribute or allow access to the APIs, Evaluation Guide, or Software (except, in the case of the Software, as part of an Application), and may not provide any information regarding the Service to any third party.
3.3. No Open Source Modifications. The licenses contained herein are conditioned upon, and you represent and warrant to Bump that you will comply with Section 3.4 of the Development Agreement, and will not (i) make any modifications to the Software (such as improper combination with GPL software), or (ii) distribute Applications, in a manner which would that would cause the Software, in whole or in part, to become subject to any of the terms of an Open Source License (as defined in the Development Agreement).
(a) Marketing. You may not make any false statement about, or warranty regarding, the Software or Service. You may use the Bump Trademarks in your marketing materials with Bump's prior written approval of such materials.
(b) Bump Trademarks. Bump grants to you a limited, nonexclusive, royalty-free, worldwide license to use, reproduce, publicly perform, distribute and display the Bump trademarks and logos ("Bump Trademarks") only to the extent necessary to fulfill your obligations under this Agreement. You will comply with any usage guidelines Bump may publish from time to time, and upon Bump's request, shall provide Bump with samples of your usage of the Bump Trademarks. You agree not to challenge Bump's ownership of the Bump Trademarks or use or adopt any trademarks that might be confusingly similar to the Bump Trademarks.
(c) Licensee Logo. You grant to Bump a limited, nonexclusive, royalty-free, worldwide license to use, reproduce, publicly perform, distribute and display your trademarks and logos ("Licensee Trademarks") on Bump's WWW site, advertising, and marketing collateral in order to identify you as a trade partner. Bump will comply with any usage guidelines you may provide to Bump from time to time, and upon your request, shall provide you with samples of Bump's usage of such Licensee Trademarks. We shall not challenge your ownership of the Licensee Trademarks or use or adopt any trademarks that might be confusingly similar to the Licensee Trademarks.
3.6. No Other Rights. Bump reserves all rights in the Software, Evaluation Guide and Service which are not expressly granted in this Agreement.
4. Fees. Provided that you comply with the restrictions contained in this Agreement, Bump will not charge any fees for use of the Software or Service. You understand that if you violate any of these terms, you may be subject to penalties and fees in relation to your breach of this Agreement. You will be solely responsible for all costs which you incur in developing the Application.
5. Ownership Rights; Certifications.
5.1. Ownership of Software; Application. (a) Except as expressly set forth herein, Bump or its licensors shall own all right, title and interest in and to the Software, Service, all data submitted to the Service relating to the connection request and confirmation (session data, including transaction description and date, time and location of the match), the Evaluation Guide and Bump Trademarks. (b) Except as set forth herein, you will retain all right, title and interest in and to the other elements of the Application and to the Licensee Trademarks. As between the parties, you and/or your end users shall own all rights in and to the client-to-client communications which occur once a device match has occurred.
5.2. Government Approvals; Compliance with Laws; Certifications. You shall not export, directly or indirectly, any Software or related information without first obtaining all required licenses and approvals from the appropriate government agencies. You shall be responsible for obtaining all necessary government approvals, consents, licenses or permits to enable you to sublicense and/or sell the Applications, including the Software contained therein. You will bear all costs associated with obtaining such government approvals, consents, licenses or permits, customs charges and duty fees, if any. You shall comply with all government laws and regulations applicable to you. You are solely responsible for obtaining all certifications and approvals (Apple store etc.) necessary to market and sell the Applications.
7. Limitation of Liability. EXCEPT IN THE EVENT OF ANY BREACH OF SECTION 3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF SUCH OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, RESULTS OF USE, OR INABILITY TO USE, THE BUMP SOFTWARE OR ANY PRODUCT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL BUMP'S LIABILITY ARISING HEREUNDER EXCEED ONE HUNDRED DOLLARS ($100). LICENSEE ACKNOWLEDGES AND AGREES THAT THE AMOUNTS PAYABLE HEREUNDER BY LICENSEE ARE BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Licensee agrees, at its own expense, to defend or at its option to settle any claim or action brought against Bump, its directors, officers, agents and licensors on the issue of Licensee's or its end users use of the Service, or infringement of any copyright, trade secret, or patent by any Application (except, in each case, for any claim brought solely as a result of Licensee's use or distribution of the Software or Service), or use by Bump of Licensee's Trademarks as authorized under this Agreement, and to indemnify Bump against any and all damages and costs, including legal fees, that a court finally awards against Bump under any such claim or action; provided that Bump provides Licensee with (1) prompt written notice of such claim or action, (2) sole control and authority over the defense or settlement of such claim or action and (3) proper and full information and reasonable assistance to defend and/or settle any such claim or action.
9.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without reference to conflicts of laws' provisions.
9.2. Partial Invalidity. If any provision in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then said provision shall be severed, solely in such jurisdiction, from the remainder of this Agreement, which shall remain in full force and effect.
9.3. Relationship of the Parties. Nothing contained in this Agreement is intended nor is it to be construed so as to conÂ¬stitute Bump and Licensee as partners or joint ventures with respect to this Agreement. Employees of any party remain employees of that party and shall at no time be considered agents of or to be obligated to render a duty to the other party.
9.4. Waiver. The failure of any party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by any party of any provision, condition or requireÂ¬ment of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
9.5. Assignment. You must notify Bump of any assignment of this Agreement to any other entity. Bump shall have the right to assign its rights, obligations and privileges hereunder to a merger partner, successor in business or acquirer of all or substantially all of Bump's business or assets without obtaining your consent. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties.
9.7. Entire Agreement; Amendment of Development Agreement. This Agreement is intended to amend and supplement the Development Agreement, but shall not be construed in any way as limiting your obligations under the Development Agreement. In addition, the parties agree that Section 4 of the Development Agreement is amended such that the Development Agreement term shall end on the same date as this Agreement, and any termination or expiration of this Agreement shall automatically, without any action by either party, terminate the Development Agreement as well. The terms and conditions contained in this Agreement and the Development Agreement constitute the entire agreement between the parties and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on any party unless the same shall have been mutually assented to in writing by both parties. In the event there is a conflict between this Agreement and the Development Agreement, the terms of this Agreement shall control.
9.8. Jurisdiction. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts of San Francisco, California.
9.9. Arbitration. Should any dispute occur between Bump and Licensee arising out of or related to the Agreement or their rights and responsibilities to the other, the matter shall be settled and determined by arbitration under the current rules of the American Arbitration Association to be held in Santa Clara County, California. The arbitrator selected shall be knowledgeable in the field of business that Bump is engaged in. The decision of the arbitrator shall be final and binding and the award so rendered may be entered in any court having a jurisdiction in the State of California. Either party may institute arbitration proceedings within one year of the claimed breach having occurred. In any action to enforce either party's rights hereunder, the prevailing party shall be entitled to reasonable attorneys fees.
9.10. Advice of Legal Counsel. Licensee acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice regarding its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
9.11. English Language. This Agreement is in the English language only, which language shall be controlling in all respects. No translation, if any, of this Agreement into any other language shall be of any force or effect in the interpretation of this Agreement or in determination of the interests of either party hereto. Furthermore, the parties agree that all correspondence, notices, orders, claims, suits and other communication between the parties hereto shall be written or conducted in English.
9.12. Foreign Corrupt Practices Act. In conformance with the United States Foreign Corrupt Practices Act, Licensee shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Licensee in obtaining, retaining or directing any such business.
[End of Agreement]
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"Just wanted to dole out some praise to the Bump dev team for making such an easy to use product. I've been racing to get my app into a beta-able state and thought for sure I wouldn't have enough time to integrate Bump. I couldn't have been more wrong! From download through integration into the app to working between simulator and iPod took a total of 90 minutes! Outstanding!"