Developer License Agreement
Updated: October 1, 2020
This Developer License Agreement controls the terms and conditions between OhmniLabs, Inc. (“OhmniLabs”) and the purchaser or licensee (“Developer” “Licensee” or “you”). Developer and OhmniLabs are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” Developer purchasing OhmniLabs Products and Software; Developer License, or Ohmni Developer Edition hereby accepts the terms and conditions outlined in this Agreement.
“Affiliate ” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “ control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“ API ” means an application programming interface.
“App ” means one or more software applications (including extensions, media, and libraries that are enclosed in a single software bundle) for OhmniLabs’s products and services.
“ Applicable Law ” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
“ Confidential Information ” means all nonpublic information revealed by or through the Disclosing Party (as defined below) to the Receiving Party (as defined below), including, without limitation the terms and conditions of this Agreement, the existence of the discussions between the Parties, and information regarding each Party’s products, services, product designs, plans and roadmaps, prices and costs, trade secrets, know-how, inventions, development plans, techniques, processes, programs, codes, algorithms, methods, schematics, software, data, customer lists, financial information, sales and marketing plans, business opportunities, personnel data, research and development activities, prototypes, and pre-release products, any information posted on the Website (as defined below) to the extent that such information is not publicly accessible, or any other information which the party receiving such information (the “ Receiving Party ”) knows or reasonably ought to know is confidential, proprietary or trade secret information of the party disclosing such information (“ Disclosing Party ”), whether tangible or intangible, and whether or how stored or compiled, and all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Receiving Party; (b) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party without reference or access to the Disclosing Party’s Confidential Information and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Customer Data ” means any data that Developer collects about End Users through its Apps, including, without limitation, personal information (such as name, email address, and other identifying information), device data, and information provided by End Users through the Apps, as well as any information that Developer collects about End Users’ use of the Apps (e.g., frequency and time spent using the Apps, features and functions used).
“ Documentation ” means the guides and manuals whether in hard copy or electronic, for use with the OhmniLabs SDK which are supplied by OhmniLabs hereunder.
“ End Users ” means any and all App users.
“ End User License Agreement ” means the agreement that each End User must agree to in order to use the App.
“ Harmful Code ” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Products, the Software, the OhmniLabs SDK, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Products, the Software, or the OhmniLabs SDK, to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of Products, the Software, or the OhmniLabs SDK.
“ Intellectual Property Rights ” means all intellectual, industrial, and similar property rights, throughout the world, whether now known or hereafter existing, including, without limitation, patents, patent applications, inventions (whether or not patentable), discoveries, copyrights, licenses, trademarks, trademark applications, trade secrets, service marks, trade dress, mask works, confidential or proprietary technical and business information, know-how or other data or information, software, source code, object code, user interfaces, databases, and all embodiments or fixations thereof and related documentation and registrations, and all additions, improvements and accessions to, and documentation describing or used in connection with, any of the foregoing.
“ OhmniLabs SDK ” means, collectively, OhmniLabs’s proprietary software developer kit, user interface kit, and APIs.
“ Products ” means the OhmniLabs telepresence robots including the robots’ hardware and the Software.
“ Software ” means the OhmniLabs software embedded in the Products, and any Updates and Upgrades which are made available by OhmniLabs from time to time.
“ Update ” means a subsequent release or version of the Software that OhmniLabs generally makes available to its customers at no additional license fee.
“ Upgrade ” means a subsequent release or version of the Software which may be installed in the Product, that OhmniLabs generally makes available to its customers at an additional fee.
TERMS AND CONDITIONS; ORDERS
Terms of Agreement. Each sale of Developer License Agreement by OhmniLabs to you is expressly made conditional on your assent to the terms outlined in this Agreement. These Terms together with each purchase order, written order, signed quote or credit card order for the purchase of the OhmniLabs Products (each, an “ Order ”) shall constitute a binding contract between you and OhmniLabs. These Terms will be the only terms and conditions that apply to any Order accepted by OhmniLabs from Developer. Any terms and conditions which are in addition to or in conflict with these Terms in an Order or other forms shall not apply to any sale of OhmniLabs Products unless expressly agreed in writing and signed by an authorized OhmniLabs representative. Neither OhmniLabs’ delivery of the OhmniLabs Products nor any other action, conduct, or performance shall constitute acceptance of any terms or conditions different from those contained in these Terms of Sale. Developer shall be deemed to have accepted the Agreement by executing an Order or by any other statement or e-mail, act, course of conduct, dealing, or performance constituting acceptance under applicable law, including failure to object in writing to these Terms of Sale within a reasonable time or by acceptance of the OhmniLabs Products. These Terms shall apply to all of Company’s future purchases and are hereby incorporated into each Order, unless OhmniLabs requires that you execute a new Terms of Sale as a condition to its acceptance of any subsequent Orders for OhmniLabs Products.
Order Contents. Each Order submitted by the Company to OhmniLabs shall include (a) the OhmniLabs Products being purchased, (b) the price of the OhmniLabs Products being purchased; (c) the quantity of OhmniLabs Products being purchased; (d) the date; (e) the delivery and billing address(es); (f) the Developer contact name and phone number; (g) a unique number assigned by Developer’s accounts payable department, if any; and (h) the estimated delivery date and the location for delivery of specific quantities of each OhmniLabs Product identified in the Order, as applicable.
Acceptance of Orders . OhmniLabs may accept or reject an Order in its sole discretion. OhmniLabs will act in good faith to confirm acceptance or rejection of Orders within a reasonable period after receipt. Upon acceptance of an Order, OhmniLabs shall acknowledge that Order and confirm the proposed dates of delivery of the OhmniLabs Products purchased within the Order (the “ Delivery Date”), or else propose new Delivery Dates that are mutually agreeable to the Company, for all quantities of each of the OhmniLabs Products set forth in the Order. All Delivery Dates are estimates and OhmniLabs shall not be liable for any delay in delivery unless caused directly by OhmniLabs’s gross negligence or willful misconduct.
Cancelling or Modifying an Order; Returns. Developer may cancel an Order or modify the quantities, specifications, and/or other terms of an Order, only with the prior written consent of OhmniLabs, which consent may be conditioned or withheld at OhmniLabs’ sole discretion . Except as otherwise agreed in writing by OhmniLabs (including as otherwise set forth in the Agreement), all sales and orders are final , and OhmniLabs has no obligation to accept returns or issue any refunds.
GRANT OF RIGHTS
License to OhmniLabs SDK . During the Term (as defined below), OhmniLabs grants to Developer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the OhmniLabs SDK and the Documentation for the sole purpose of developing one or more Apps for integration with the Software.
Modifications. OhmniLabs reserves the right to modify the Software and SDK, or portions thereof, from time to time by adding, deleting, discontinuing, or modifying features to improve the user experience. OhmniLabs will use commercially reasonable efforts, but shall not be required, to provide reasonable advance written notice to Developer prior to the discontinuation of any feature.
Restrictions on Use. Developer shall not (and shall not authorize, permit, or encourage any third party to): (i) allow anyone other than Developer’s authorized personnel to access and use the OhmniLabs SDK; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Product or the OhmniLabs SDK; (iii) modify, adapt, or translate the Product or the OhmniLabs SDK; (iv) make any copies of the Product or the OhmniLabs SDK; (v) resell, distribute, or sublicense the Product or the OhmniLabs SDK, or use the Product or the OhmniLabs SDK for the benefit of anyone other than Developer; (vi) save, store, or archive any portion of the Product or the OhmniLabs SDK (including, without limitation, any data contained therein) outside the Product or the OhmniLabs SDK; (vii) remove or modify any proprietary markings or restrictive legends placed on the Product or the OhmniLabs SDK; (viii) use the Product or the OhmniLabs SDK in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (ix) introduce, post, or upload Harmful Code to the Product or the OhmniLabs SDK; or (x) circumvent any processes, procedures, or technologies that OhmniLabs has put in place to safeguard the Product and the OhmniLabs SDK. Upon OhmniLabs’s request, Developer will use commercially reasonable efforts to assist OhmniLabs in preventing and enforcing these restrictions.
Third-Party Service Providers. Notwithstanding anything to the contrary herein, Developer is permitted to employ or retain a third party (“ Service Provider ”) to assist Developer in using the OhmniLabs SDK pursuant to this Agreement, including, but not limited to, engaging any such Service Provider to maintain and administer the App servers on Developer’s behalf, provided that any such Service Provider’s use of the OhmniLabs SDK or any materials associated therewith is done solely on Developer’s behalf and only in accordance with the terms and conditions of this Agreement. Developer agrees to have a written agreement with each such Service Provider with terms at least as restrictive and protective of OhmniLabs as those set forth herein. Any acts and omissions undertaken by any such Service Provider shall be deemed to have been taken by Developer, and Developer shall be responsible to OhmniLabs for all such acts and omissions.
Third-Party Components. If any App contains any code, software, content, or other materials owned by a third party (“ Third-Party Components”), Developer is solely responsible for securing and maintaining, at its own cost and expense, all necessary rights, clearances and consents and paying all licensing fees with respect to any Third-Party Components used in connection with the Apps, including all rights necessary for OhmniLabs to perform its obligations hereunder.
Developer Support. Su pport requests regarding usage of the OhmniLabs SDK may be submitted to OhmniLabs via email at email@example.com. OhmniLabs will use commercially reasonable efforts to respond to such requests, but makes no guarantees with respect to response times or that all requests will be resolved. For issues with the OhmniLabs SDK that affect the integration with an App, OhmniLabs will determine the prioritization of such issues and use commercially reasonable efforts to promptly resolve or provide a workaround to any critical issues .
APP REQUIREMENTS; SUBMISSIONS AND APPROVAL
App Requirements. All Apps shall be developed in compliance with the Documentation and OhmniLabs’s developer requirements (the “Developer Requirements ”) posted on docs.ohmnilabs.com. OhmniLabs reserves the right to amend the Developer Requirements from time to time. In addition to the Developer Requirements, all Apps (i) must comply with Applicable Laws (including, but not limited to, any laws related to data protection, privacy, or consumer transactions), (ii) must not include any advertising content, (iii) must not promote or facilitate illegal or offensive activities, including, but not limited to, violence, firearms, alcohol, pornography, or profane, discriminatory, or derogatory images or messaging, (iv) must not contain any Harmful Code, and (v) must not infringe, misappropriate, or otherwise violate the Intellectual Property Rights of any third party (collectively with the Developer Requirements, the “Requirements ”).
Submissions. Developer shall submit to OhmniLabs for its approval each App (including any and all bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases, and new versions of the App) that Developer wishes to integrate into the Software. Each submission shall include a copy of the proposed Customer Terms (as defined below) and any other information reasonably requested by Tictail with each App submitted for Approval. By submitting an App for approval, Developer represents and warrants that the App complies with this Agreement, the Documentation, and all Requirements then in effect. Developer shall not misrepresent or obscure any features, content, services, or functionality of the submitted App, or otherwise hinder OhmniLabs from being able to fully review such submissions. Developer shall cooperate with OhmniLabs in the submission and review process, and to answer questions and provide information and materials.
OhmniLabs Updates. OhmniLabs may, but shall not be obligated to, extend, enhance, or otherwise modify the Products (or any part thereof) provided hereunder at any time. OhmniLabs will use commercially reasonable efforts to notify Developer in advance of any such modifications. If Updates or Upgrades are made available by OhmniLabs, the terms of this Agreement will govern such Updates and Upgrades. Developer understands and agrees that such modifications, Updates, and Upgrades may require Developer to change or update its Apps. Further, Developer acknowledges and agrees that such modifications may affect its ability to use, access, or interact with the OhmniLabs SDK. It is Developer’s responsibility to ensure that its Apps are at all times compatible with the Software, including any Updates or Upgrades issued by OhmniLabs, and any updates, upgrades, or modifications made to the Software’s operating system (Android).
Review and Approval. Upon receipt of an App submission, OhmniLabs will review the App and all ancillary materials, including the End User License Agreement. OhmniLabs reserves the right to approve or withhold approval of any App (or any bug fix, update, upgrade, modification, enhancement, supplement, revision, new release, or new version) if the submission fails in any manner to comply with the Requirements, if the End User License Agreement is inconsistent with the Software EULA or otherwise fails to comply with Section 3.3 above, or for any other reason as determined by OhmniLabs in its sole, reasonable discretion. OhmniLabs will notify Developer in writing of any approval or rejection and, in the cases of rejection, include reasons for such rejection. Developer shall have the opportunity to resubmit the App for OhmniLabs’s review any number of times thereafter during the Term, provided that Developer is not in default of this Agreement. OhmniLabs may evaluate an App periodically after it is first approved to verify that it continues to comply with this Agreement and remains compatible with the Software.
INSTALLATION SERVICES; PURCHASE OF PRODUCTS
Purchase Orders. If Developer desires for OhmniLabs to install any approved App in Products, Developer may place a purchase order (each, an “Order ”) for such installation services and the purchase of such Products with the approved App pre-installed therein (the “Pre-Installed Products ”). Each Order shall be subject to OhmniLabs’s acceptance thereof, and shall include (i) the App to be installed into the Products, (ii) the number of Pre-Installed Products to be purchased by Developer, (iii) a comprehensive checklist of all features and functionalities required to be tested by OhmniLabs upon installation to ensure that the App is successfully installed and operating properly, and (iv) any other terms as set forth in the Terms of Sale (as defined below).
Terms of Sale. Each sale of Products by OhmniLabs to Developer is expressly made conditional on Developer’s assent to the terms and conditions of sale posted on OhmniLabs.com website. The Terms of Sale are incorporated into and made a part of this Agreement. If there is any conflict between the provisions of the Terms of Sale and the provisions of this Agreement, the provisions of this Agreement shall prevail.
Installation and Maintenance. Upon acceptance of an Order, OhmniLabs shall install the approved App in its Products in accordance with the Order and the instructions provided by Developer. If Developer submits, and OhmniLabs approves, any bug fix, update, upgrade, modification, enhancement, supplement, revision, new release, or new version of the App, upon Developer’s request, OhmniLabs shall deploy such approved modification after performing any necessary internal testing. During the Term, OhmniLabs shall maintain the App and any modifications thereto on each Pre-Installed Product.
License to OhmniLabs. During the Term, Developer hereby grants to OhmniLabs an exclusive, non-transferable (except as provided in Section 11.5 below), worldwide, royalty-free, fully paid, limited right and license to use each approved App, solely for the following limited purposes: (i) to install the App into the Software of Pre-Installed Products in accordance with the terms of an Order, (ii) for compatibility testing of the App with the Software, (iii) for finding and fixing bugs in the Software, (iv) for internal use in evaluating OhmniLabs’s products and services, and (v) for purposes of providing certain information to Developer (such as crash logs and other performance data).
Resale. Developer shall be free to resell the Pre-Installed Products to End Users at its discretion. All Product warranties, obligations of OhmniLabs (including support), and liability of OhmniLabs shall be owed solely to Developer. OhmniLabs shall have no obligations towards any End User except to the extent provided in the Software EULA or otherwise expressly stated in this Agreement. Developer’s payment obligations under Section 5 are based on Pre-Installed Products purchased, and not on actual resale or use.
Software Licensed Not Sold. Developer agrees and acknowledges that all Software is licensed and not sold. When Developer purchases Pre-Installed Products (and when any End User purchases such Pre-Installed Products from Developer), it is purchasing (i) the hardware, and (ii) a license to use the Software. Accordingly, as used in this Agreement and in the Terms of Sale, the terms “purchase” and “sell” (and their respective correlates) with respect to the Software shall be deemed to mean “license” (and its correlates).
End User Support. Developer shall provide End Users with a commercially reasonable level of support for the Apps. Developer shall promptly respond to End User support requests and use reasonable efforts to promptly correct any bugs identified in the Apps.
Ownership. As between the Parties, all right, title, and interest in and to the Software, the Documentation, and the OhmniLabs SDK, New IP (as defined below) including any and all integrations, modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, all Updates and Upgrades to the Software, and all Intellectual Property Rights therein (collectively, “OhmniLabs IP”), are and will remain the sole and exclusive property of OhmniLabs. “New IP” shall mean any new software, code, or technology developed by or on behalf of OhmniLabs in the course of its performance under this Agreement including any connector technology enabling OhmniLabs to install an approved App, except for any Developer IP that may be incorporated therein. Except for the express rights and licenses granted hereunder, nothing in this Agreement shall grant OhmniLabs any right or interest in or to the OhmniLabs IP.
Developer IP. As between the Parties, all right, title, and interest in and to the Apps, including any and all bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases, and new versions of the App, and all Intellectual Property Rights therein (collectively, “Developer IP”), are and will remain the sole and exclusive property of Developer. Except for the express rights and licenses granted hereunder, nothing in this Agreement shall grant OhmniLabs any right or interest in or to the Apps.
Customer Data. As between the Parties, Developer owns and shall retain all right, title, and interest in and to the Customer Data. Developer hereby grants OhmniLabs a non-exclusive, worldwide, fully paid-up, royalty-free, perpetual, irrevocable right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to collect, reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data via the Software only for the purpose of providing the Pre-Installed Products to Developer and End Users. In addition, Developer grants OhmniLabs the right to subject such Customer Data to anonymization and aggregation, and to use such anonymous, aggregate data (the “Aggregate Data”) for any lawful purpose. OhmniLabs shall be the sole owner of all right, title, and interest in and to the Aggregate Data. Aggregate Data does not identify Developer or any End User or other individual.
REPRESENTATIONS AND WARRANTIES; LIMITED PRODUCT WARRANTY; DISCLAIMER
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby constitute a valid and binding agreement of such Party; (iii) the individual accepting this Agreement on behalf of a legal entity has the authority to bind such entity to this Agreement; and (iv) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
Developer Representations and Warranties. Developer further represents and warrants to OhmniLabs that the App complies with all Requirements and Applicable Laws, and that it has the right to provide OhmniLabs with all rights and licenses granted hereunder including to permit OhmniLabs to collect, the Customer Data in accordance with this Agreement.
Disclaimer. EXCEPT FOR THE LIMITED WARRANTY UNDER SECTION 7.4, AND AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PRODUCTS (INCLUDING PRE-INSTALLED PRODUCTS), THE OHMNILABS SDK, THE DOCUMENTATION, OHMNILABS’S SUPPORT SERVICES, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED BY OHMNILABS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER OHMNILABS NOR ITS SUPPLIERS OR SERVICE PROVIDERS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND OHMNILABS HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, COMPLETENESS, CURRENTNESS, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
Limited Product Warranty. OhmniLabs warrants that for a period of one (1) year following purchase of the Pre-Installed Products (the “Warranty Period”), the Pre-Installed Products (except for the App) will, when used in accordance with all applicable product documentation, function substantially in the manner described in such product documentation (the “Limited Warranty”). The Limited Warranty does not cover any Pre-Installed Product (i) that has been modified, repaired or serviced by anyone other than OhmniLabs, (ii) has been subjected to unusual physical or electrical stress, whether such stress results from accident, neglect, misuse, failure of electrical power, air conditioning, humidity control, or transportation, (iii) which is damaged by liquid, or exposure to high heat (iv) which ceases to function as a result of any problem or nonconformity arising from the App or the use of third party software, hardware, application modules or other equipment not purchased from or through OhmniLabs, authorized by OhmniLabs, or provided or supplied by OhmniLabs, (v) which has been damaged or infected by viruses or hackers, (vi) which ceases to function as a result of any problem or nonconformity in any version or release of the Software other than the most recent release Updates to such Software and the immediately preceding minor releases (if OhmniLabs has made such corrective release available at no additional charge), or (vii) which suffers normal wear and tear. Claims brought after the applicable Warranty Period are not covered by this Limited Warranty.
Claims. In order to bring a claim under the Limited Warranty, Developer must notify the OhmniLabs helpdesk, describing the defect in reasonable detail. If OhmniLabs determines that such defect may be covered by the Limited Warranty, OhmniLabs will issue a return material authorization (“RMA”) to Developer, and Developer shall return the Pre-Installed Product in question to OhmniLabs using the instructions provided by OhmniLabs (or, if so instructed by OhmniLabs, Developer shall destroy the defective Pre-Installed Product). If a Pre-Installed Product fails to function in material conformance with the Documentation at the time of first use (“Dead on Arrival” or “DOA”), or if a Pre-Installed Product fails in material noncompliance with the Limited Warranty during the Warranty Period, OhmniLabs will provide a replacement Pre-Installed Product, or spare parts, to Developer, at OhmniLabs’s sole expense including shipping costs. Any DOA Pre-Installed Product must be notified to OhmniLabs within thirty (30) days of delivery to Developer, or Developer will be charged the full price for the replacement Pre-Installed Product or spare part. If identical materials are not available at the time of repair or replacement, OhmniLabs may, at its option, substitute materials of comparable quality or refund Developer’s money.
Shipment of Replacements. OhmniLabs will pay freight costs to (i) ship any defective Pre-Installed Products covered by the Limited Warranty back to OhmniLabs, and (ii) ship any replacement Pre-Installed Products or parts to Developer, at normal non-expedited shipping rates. If any DOA Product is returned without fault (as determined by OhmniLabs in its reasonable discretion), Developer shall pay OhmniLabs a restocking fee equal to fifteen percent (15%) of the sales price, all shipping costs associated with the DOA Product, and the full cost of the applicable replacement Pre-Installed Product. Developer is responsible for ensuring that defective Pre-Installed Products are shipped to OhmniLabs and that replacements are provided to affected End Users. OhmniLabs shall not have direct contact with End Users.
SOLE REMEDY. DEVELOPER’S AND END-USERS’ SOLE AND EXCLUSIVE REMEDY, AND OHMNILABS’S ENTIRE LIABILITY FOR BREACH OF ANY WARRANTY, SHALL BE (i) CORRECTION OF THE WARRANTED NONCONFORMITY IN THE PRE-INSTALLED PRODUCT REPORTED TO OHMNILABS WITHIN THE WARRANTY PERIOD, AND (ii) REPAIR OR REPLACEMENT OF DEFECTIVE PRE-INSTALLED PRODUCT THAT IS RETURNED TO OHMNILABS WITHIN THE WARRANTY PERIOD; PROVIDED, HOWEVER, THAT IF OHMNILABS IS UNABLE TO CORRECT A WARRANTED NONCONFORMITY IN THE PRE-INSTALLED PRODUCT, OHMNILABS MAY, IN ITS SOLE DISCRETION AND WITHOUT LIABILITY TO DEVELOPER OR THE END USER, TERMINATE THE LICENSE WITH RESPECT TO THE NON-CONFORMING SOFTWARE, AND REFUND ANY FEES PAID BY DEVELOPER FOR USE OF SUCH NON-CONFORMING SOFTWARE AND ANY PRE-INSTALLED PRODUCT RELIANT ON SUCH DEFECTIVE SOFTWARE, LESS THE APPLICABLE VALUE FOR USE OF THE PRE-INSTALLED PRODUCT AMORTIZED OVER A 1-YEAR PERIOD FROM THE DATE OF PURCHASE OF THE PRE-INSTALLED PRODUCT.
Scope. The Limited Warrant may be passed through to the End User, but shall remain active only for the one (1) year period commencing on delivery of the Pre-Installed Products to Developer. In no event shall Developer make any additional or modified representations or warranties regarding any Pre-Installed Products or OhmniLabs services without OhmniLabs’s prior written consent in each instance.
Limits on Use and Disclosure. At all times the Receiving Party shall protect and preserve the Confidential Information as confidential, using no less care than that with which the Receiving Party protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform Receiving Party’s obligations and exercise its rights under this Agreement. Receiving Party may disclose, distribute, or disseminate the Confidential Information to its officers, directors, members, managers, partners, employees, contractors or agents (“Representatives”), provided that such Representatives have a need to know such Confidentiality Information, and that such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. Receiving Party shall not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the Disclosing Party’s prior written consent in each instance. Receiving Party shall at all times remain responsible for any violations of this Agreement by any of its Representatives (or, in the case of Developer, any End Users). If the Receiving Party is legally compelled to disclose any of the Confidential Information, it shall provide the Disclosing Party with prior written notice as promptly as practicable of such requirement so that Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this section. If such protective order or other remedy is not obtained or if Disclosing Party waives compliance with the provisions of this section, Receiving Party may furnish only that portion of the Confidential Information which it is advised by its legal counsel is legally required to be disclosed, and will use its best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Specific Performance and Injunctive Relief. Developer acknowledges that in the event of a breach of Section 8.1 by Developer, its Representatives, or any End User, substantial injury will result to OhmniLabs, and money damages will not be a sufficient remedy for such breach. Therefore, in the event that Developer, its Representatives, or any End Users engage in, or threaten to engage in any act which violates Section 8.1, OhmniLabs will be entitled, in addition to all other remedies which may be available to it under law, to injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 8.1. Further, OhmniLabs will not be required to post a bond or other security in connection with the granting of any such relief.
Suggestions. Developer and End Users may provide feedback, comments and suggestions to OhmniLabs for improvements or corrections to the Pre-Installed Products, from time to time (“Suggestions”). If Developer or any End User submits any such Suggestions to OhmniLabs, such Suggestions shall be treated as non-confidential for all purposes, and OhmniLabs will be free to use, reproduce, disclose, and otherwise exploit any and all such Suggestions without compensation or attribution to Developer or the End User.
TERM AND TERMINATION
Term. The term of this Agreement shall commence on the Purchase Date and, subject to earlier termination in accordance with the terms of this Section 9, shall remain in effect for an initial period of one (1) year (the “Initial Term”). Thereafter, the term shall automatically renew for successive one (1) year periods, unless either Party provides written notice of termination to the other Party at least sixty (60) days before the date of expiration of such one (1) year period (the “Term”).
Termination. This Agreement will terminate three (3) years after Purchase Date. Either Party may terminate this Agreement with thirty (30) days’ prior written notice to the other Party, if the other Party, its Affiliates, or, in the case of Developer, any End User, breaches a material provision of this Agreement and does not cure such breach within thirty (30) calendar days after receipt of notice of such breach. In addition, either Party may terminate upon written notice after thirty (30) days following the failure to resolve the suspension of business, insolvency, institution of bankruptcy, liquidation proceedings by or against the other Party, appointment of a trustee or receiver for the other Party’s property or business, or any assignment, reorganization or arrangement by the other Party for the benefit of its creditors.
Effect of Termination. Upon expiration or termination of this Agreement: (i) OhmniLabs will immediately stop providing access to the OhmniLabs SDK, and all licenses under this Agreement shall immediately terminate, but such termination shall not affect the rights of existing End Users to use the Pre-Installed Product pursuant to the Software EULA [and the App pursuant to the End User License Agreement]; (ii) all fees and other charges accrued prior to the termination date shall be immediately due and payable; (iii) no refunds of fees paid shall be made, unless otherwise specifically provided herein; (iv) all licenses under this Agreement shall immediately terminate; and (v) Developer shall immediately return to OhmniLabs, or, at OhmniLabs’s option, Developer shall destroy, all originals and copies of any OhmniLabs Confidential Information in its possession or under its control. Expiration or termination of this Agreement shall not terminate any liabilities accrued under this Agreement prior to the effective date of termination.
Survival. The following provisions will survive the termination of this Agreement: Section 1 (“Definitions”), Section 6 (“Intellectual Property”), Section 7 (“Representations and Warranties; Limited Product Warranty; Disclaimer”), Section 8 (“Confidentiality”), Section 9.3 (“Effect of Termination”), this Section 9.4 (“Survival”), Section 10 (“Indemnification”), Section 11 (“Limitation of Liability”), and Section 12 (“Miscellaneous”).
Indemnification by Developer. Developer will indemnify, defend, and hold OhmniLabs, its Affiliates, and its and their respective Representatives harmless from and against any and all liabilities, losses, damages, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from (i) the Apps (whether or not approved) and OhmniLabs’s or any End User’s use thereof except to the extent the Claim would not have arisen but for OhmniLabs’s gross negligence or willful misconduct, (ii) Developer’s breach or violation of this Agreement, including any of Developer’s representations and warranties hereunder; (iii) Developer’s gross negligence, willful misconduct, or fraud; or (iv) Developer’s violation of Applicable Law.
Indemnification by OhmniLabs. OhmniLabs will indemnify, defend, and hold Developer harmless from and against any and all Losses incurred by Developer in connection with any third-party Claim (i) arising from OhmniLabs’ gross negligence, willful misconduct, or fraud, or (ii) alleging that the Pre-Installed Products (except for the Apps), the OhmniLabs SDK, or the Documentation infringes or misappropriates any third-party Intellectual Property Rights (an “Infringement Claim”). In the event that OhmniLabs reasonably determine that the Pre-Installed Products, the OhmniLabs SDK, or the Documentation is likely to be the subject of a third-party Claim, OhmniLabs will have the right to: (a) procure for Developer the right to continue to use the Pre-Installed Products, the OhmniLabs SDK, and the Documentation as provided in this Agreement; (b) replace the infringing components of the Pre-Installed Products, the OhmniLabs SDK, and the Documentation with other components with equivalent functionality; or (c) suitably modify the Pre-Installed Products, the OhmniLabs SDK, and the Documentation so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to OhmniLabs on commercially reasonable terms, OhmniLabs may terminate this Agreement without further liability to Developer and refund OhmniLabs a pro-rated portion of fees pre-paid. Notwithstanding the foregoing, OhmniLabs does not have indemnification obligations under this Section 10.2 or otherwise with respect to any Infringement Claim to the extent the Infringement Claim arises from or is based upon (v) any OhmniLabs product or service outside of the scope of this Agreement; (w) Developer’s or any End User’s use of the Pre-Installed Products or the OhmniLabs SDK not in accordance with the Documentation or this Agreement; (x) any unauthorized modifications, alterations, or implementations of the Pre-Installed Products, the OhmniLabs SDK, or the Documentation made by or on behalf of Developer or an End User (other than by OhmniLabs); (y) use of the Pre-Installed Products, the OhmniLabs SDK, and the Documentation in combination with unauthorized modules, apparatus, hardware, software, devices, or services not supplied or expressly permitted in writing by OhmniLabs; or (z) use of the Pre-Installed Products, the OhmniLabs SDK, and the Documentation in a manner or for a purpose for which it was not designed. This Section 10.2 states Developer’s sole and exclusive remedy, and OhmniLabs’s sole and exclusive liability, regarding any Infringement Claim.
Procedure. The indemnification obligations set forth in this Section 10 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim (provided that failure to provide prompt written notice to of such Claim will not alleviate the indemnifying Party of its obligations under this Section 10 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO LIABILITY ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, A PARTY’S INDEMNIFICATION OBLIGATIONS, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, (I) IN NO EVENT WILL OHMNILABS BE LIABLE TO DEVELOPER, ANY END USERS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER OHMNILABS WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND (II) OHMNILABS’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY DEVELOPER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention ”); and (iv) the Protocol amending the 1974 Convention, consummated in Vienna as of April 11, 1980.
Dispute Resolution. The Parties shall attempt to privately settle all disputes, controversies, or differences concerning the content of this Agreement and its interpretation, or the performance or breach thereof (the “ Disputes ”), which may arise between the Parties. If after thirty (30) days of using good faith efforts such Disputes are not settled, the Parties shall submit the Disputes to commercial arbitration. The arbitration shall take place in California, U.S.A., conducted in English and shall be governed by the laws of the State of California without regard to its conflicts of laws principles (excluding any such laws which would result in the application of the laws of a different jurisdiction) in accordance with the rules of the American Arbitration Association. The award of such arbitration shall be final, binding and enforceable through entry in any court of competent jurisdiction.
Force Majeure. Neither Party shall be liable to the other for failure or delay in the performance of a required obligation (other than payment obligations hereunder) if such failure or delay is caused by riot, fire, flood, earthquake, natural disaster, electronic virus, electronic attack or infiltration, Internet disturbance, government act, act of God or other similar cause which is beyond such Party’s control (collectively, a “ Force Majeure Event ”). The affected Party shall give prompt notice of such act or cause and use commercially reasonable efforts to resume its full performance under this Agreement as soon as practicable; provided, that the other Party (the “ Non-Affected Party ”) may terminate this Agreement if such condition continues for a period of ninety (90) days. During the Force Majeure Event, the Non-Affected Party may similarly suspend its performance obligations (other than payment obligations accrued prior to the commencement of the Force Majeure Event), until such time as the Affected Party resumes its performance obligations under this Agreement.
Entire Agreement. This Agreement, including the Attachments, constitutes the entire agreement between the Parties hereto relating to the subject matters of this Agreement, and supersedes all prior communications, whether oral or in writing, and all contemporaneous oral communications. No term or condition of Developer’s purchase order or other document provided to OhmniLabs which is different from, inconsistent with, or in addition to the terms and conditions set forth herein (including in the Terms of Sale) will be binding upon OhmniLabs. Except as expressly provided in this Agreement, this Agreement may not be modified or amended except pursuant to a written instrument signed by both Parties. The failure of either Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by both Parties. In the event of a conflict between the terms and conditions of this Agreement and any individual Attachment, this Agreement shall govern.
Assignment. Neither Party may assign or otherwise transfer this Agreement or its rights and duties without the prior written consent of the other Party to this Agreement; provided, however, that OhmniLabs may assign this Agreement, without the prior written consent of Developer, to the successor of all or substantially all of its assets or capital stock, or to any Affiliate. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
Independent Contractors. The Parties are independent contractors. Nothing contained in this Agreement shall cause the other Party to be deemed an agent, representative, employee or employer of the other Party, or both Parties as joint venturers or partners for any purpose. Neither Party will have the authority to speak for, represent or obligate the other Party in any way without prior written authority from the other Party.
Compliance with Law. OhmniLabs and Developer shall comply with all Applicable Laws related to its performance under this Agreement (including without limitation, the export control laws of the United States and regulations thereunder concerning the exporting, importing and re-exporting of computer software, encrypted computer software and hardware). Developer agrees to furnish all documentation required by the United States government in connection with obtaining any required export license, and agrees that unauthorized diversion, transshipment or re-exportation of the Pre-Installed Products in violation of the export license or any applicable law shall not be permitted.
Notices. Any notices given under this Agreement shall be in writing and in the English language and shall be delivered by a nationally recognized commercial courier service or by certified or registered mail, postage prepaid, return receipt requested, or by facsimile transmission (with verification of receipt), directed to the parties at the respective addresses set forth in this Agreement, or such other address as to which notice has been given. Notices shall be deemed given upon receipt. Notices (i) to OhmniLabs shall be sent to the attention of Legal Counsel at OhmniLabs, and (ii) to Developer shall be sent to the attention of its legal counsel.
Severability. If any provision of this Agreement shall be held by any court of competent jurisdiction 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.
Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.