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1 | | -TODO: Add your license here. |
| 1 | +SOURCE CODE LICENSE AGREEMENT |
| 2 | + |
| 3 | +IMPORTANT - READ THIS CAREFULLY BEFORE DOWNLOADING, INSTALLING, USING OR |
| 4 | +ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT. |
| 5 | + |
| 6 | +THIS IS A LEGAL AGREEMENT BETWEEN STREAM.IO, INC. (“STREAM.IO”) AND THE |
| 7 | +BUSINESS ENTITY OR PERSON FOR WHOM YOU (“YOU”) ARE ACTING (“CUSTOMER”) AS |
| 8 | +THE |
| 9 | +LICENSEE OF THE PROPRIETARY SOFTWARE INTO WHICH THIS AGREEMENT HAS BEEN |
| 10 | +INCLUDED (THE “AGREEMENT”). YOU AGREE THAT YOU ARE THE CUSTOMER, OR YOU |
| 11 | +ARE AN |
| 12 | +EMPLOYEE OR AGENT OF CUSTOMER AND ARE ENTERING INTO THIS AGREEMENT FOR |
| 13 | +LICENSE |
| 14 | +OF THE SOFTWARE BY CUSTOMER FOR CUSTOMER’S BUSINESS PURPOSES AS DESCRIBED |
| 15 | +IN |
| 16 | +AND IN ACCORDANCE WITH THIS AGREEMENT. YOU HEREBY AGREE THAT YOU ENTER |
| 17 | +INTO |
| 18 | +THIS AGREEMENT ON BEHALF OF CUSTOMER AND THAT YOU HAVE THE AUTHORITY TO |
| 19 | +BIND |
| 20 | +CUSTOMER TO THIS AGREEMENT. |
| 21 | + |
| 22 | +STREAM.IO IS WILLING TO LICENSE THE SOFTWARE TO CUSTOMER ONLY ON THE |
| 23 | +FOLLOWING |
| 24 | +CONDITIONS: (1) YOU ARE A CURRENT CUSTOMER OF STREAM.IO; (2) YOU ARE NOT A |
| 25 | +COMPETITOR OF STREAM.IO; AND (3) THAT YOU ACCEPT ALL THE TERMS IN THIS |
| 26 | +AGREEMENT. BY DOWNLOADING, INSTALLING, CONFIGURING, ACCESSING OR OTHERWISE |
| 27 | +USING THE SOFTWARE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, |
| 28 | +YOU |
| 29 | +REPRESENT, WARRANT AND ACKNOWLEDGE THAT (A) CUSTOMER IS A CURRENT CUSTOMER |
| 30 | +OF |
| 31 | +STREAM.IO; (B) CUSTOMER IS NOT A COMPETITOR OF STREAM.IO; AND THAT (C) YOU |
| 32 | +HAVE |
| 33 | +READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND THAT CUSTOMER AGREES |
| 34 | +TO BE |
| 35 | +BOUND BY ALL THE TERMS OF THIS AGREEMENT. |
| 36 | + |
| 37 | +IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, |
| 38 | +STREAM.IO IS UNWILLING TO LICENSE THE SOFTWARE TO CUSTOMER, AND THEREFORE, |
| 39 | +DO |
| 40 | +NOT COMPLETE THE DOWNLOAD PROCESS, ACCESS OR OTHERWISE USE THE SOFTWARE, |
| 41 | +AND |
| 42 | +CUSTOMER SHOULD IMMEDIATELY RETURN THE SOFTWARE AND CEASE ANY USE OF THE |
| 43 | +SOFTWARE. |
| 44 | + |
| 45 | +1. SOFTWARE. The Stream.io software accompanying this Agreement, may |
| 46 | +include |
| 47 | +Source Code, Executable Object Code, associated media, printed materials |
| 48 | +and |
| 49 | +documentation (collectively, the “Software”). The Software also includes |
| 50 | +any |
| 51 | +updates or upgrades to or new versions of the original Software, if and |
| 52 | +when |
| 53 | +made available to you by Stream.io. “Source Code” means computer |
| 54 | +programming |
| 55 | +code in human readable form that is not suitable for machine execution |
| 56 | +without |
| 57 | +the intervening steps of interpretation or compilation. “Executable Object |
| 58 | +Code" means the computer programming code in any other form than Source |
| 59 | +Code |
| 60 | +that is not readily perceivable by humans and suitable for machine |
| 61 | +execution |
| 62 | +without the intervening steps of interpretation or compilation. “Site” |
| 63 | +means a |
| 64 | +Customer location controlled by Customer. “Authorized User” means any |
| 65 | +employee |
| 66 | +or contractor of Customer working at the Site, who has signed a written |
| 67 | +confidentiality agreement with Customer or is otherwise bound in writing |
| 68 | +by |
| 69 | +confidentiality and use obligations at least as restrictive as those |
| 70 | +imposed |
| 71 | +under this Agreement. |
| 72 | + |
| 73 | +2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, |
| 74 | +in |
| 75 | +consideration for the representations, warranties, and covenants made by |
| 76 | +Customer in this Agreement, Stream.io grants to Customer, during the term |
| 77 | +of |
| 78 | +this Agreement, a personal, non-exclusive, non-transferable, |
| 79 | +non-sublicensable |
| 80 | +license to: |
| 81 | + |
| 82 | +a. install and use Software Source Code on password protected computers at |
| 83 | +a Site, |
| 84 | +restricted to Authorized Users; |
| 85 | + |
| 86 | +b. create derivative works, improvements (whether or not patentable), |
| 87 | +extensions |
| 88 | +and other modifications to the Software Source Code (“Modifications”) to |
| 89 | +build |
| 90 | +unique scalable newsfeeds, activity streams, and in-app messaging via |
| 91 | +Stream’s |
| 92 | +application program interface (“API”); |
| 93 | + |
| 94 | +c. compile the Software Source Code to create Executable Object Code |
| 95 | +versions of |
| 96 | +the Software Source Code and Modifications to build such newsfeeds, |
| 97 | +activity |
| 98 | +streams, and in-app messaging via the API; |
| 99 | + |
| 100 | +d. install, execute and use such Executable Object Code versions solely |
| 101 | +for |
| 102 | +Customer’s internal business use (including development of websites |
| 103 | +through |
| 104 | +which data generated by Stream services will be streamed (“Apps”)); |
| 105 | + |
| 106 | +e. use and distribute such Executable Object Code as part of Customer’s |
| 107 | +Apps; and |
| 108 | + |
| 109 | +f. make electronic copies of the Software and Modifications as required |
| 110 | +for backup |
| 111 | +or archival purposes. |
| 112 | + |
| 113 | +3. RESTRICTIONS. Customer is responsible for all activities that occur in |
| 114 | +connection with the Software. Customer will not, and will not attempt to: |
| 115 | +(a) |
| 116 | +sublicense or transfer the Software or any Source Code related to the |
| 117 | +Software |
| 118 | +or any of Customer’s rights under this Agreement, except as otherwise |
| 119 | +provided |
| 120 | +in this Agreement, (b) use the Software Source Code for the benefit of a |
| 121 | +third |
| 122 | +party or to operate a service; (c) allow any third party to access or use |
| 123 | +the |
| 124 | +Software Source Code; (d) sublicense or distribute the Software Source |
| 125 | +Code or |
| 126 | +any Modifications in Source Code or other derivative works based on any |
| 127 | +part of |
| 128 | +the Software Source Code; (e) use the Software in any manner that competes |
| 129 | +with |
| 130 | +Stream.io or its business; or (e) otherwise use the Software in any manner |
| 131 | +that |
| 132 | +exceeds the scope of use permitted in this Agreement. Customer shall use |
| 133 | +the |
| 134 | +Software in compliance with any accompanying documentation any laws |
| 135 | +applicable |
| 136 | +to Customer. |
| 137 | + |
| 138 | +4. OPEN SOURCE. Customer and its Authorized Users shall not use any |
| 139 | +software or |
| 140 | +software components that are open source in conjunction with the Software |
| 141 | +Source Code or any Modifications in Source Code or in any way that could |
| 142 | +subject the Software to any open source licenses. |
| 143 | + |
| 144 | +5. CONTRACTORS. Under the rights granted to Customer under this Agreement, |
| 145 | +Customer may permit its employees, contractors, and agencies of Customer |
| 146 | +to |
| 147 | +become Authorized Users to exercise the rights to the Software granted to |
| 148 | +Customer in accordance with this Agreement solely on behalf of Customer to |
| 149 | +provide services to Customer; provided that Customer shall be liable for |
| 150 | +the |
| 151 | +acts and omissions of all Authorized Users to the extent any of such acts |
| 152 | +or |
| 153 | +omissions, if performed by Customer, would constitute a breach of, or |
| 154 | +otherwise |
| 155 | +give rise to liability to Customer under, this Agreement. Customer shall |
| 156 | +not |
| 157 | +and shall not permit any Authorized User to use the Software except as |
| 158 | +expressly permitted in this Agreement. |
| 159 | + |
| 160 | +6. COMPETITIVE PRODUCT DEVELOPMENT. Customer shall not use the Software in |
| 161 | +any way |
| 162 | +to engage in the development of products or services which could be |
| 163 | +reasonably |
| 164 | +construed to provide a complete or partial functional or commercial |
| 165 | +alternative |
| 166 | +to Stream.io’s products or services (a “Competitive Product”). Customer |
| 167 | +shall |
| 168 | +ensure that there is no direct or indirect use of, or sharing of, Software |
| 169 | +source code, or other information based upon or derived from the Software |
| 170 | +to |
| 171 | +develop such products or services. Without derogating from the generality |
| 172 | +of |
| 173 | +the foregoing, development of Competitive Products shall include having |
| 174 | +direct |
| 175 | +or indirect access to, supervising, consulting or assisting in the |
| 176 | +development |
| 177 | +of, or producing any specifications, documentation, object code or source |
| 178 | +code |
| 179 | +for, all or part of a Competitive Product. |
| 180 | + |
| 181 | +7. LIMITATION ON MODIFICATIONS. Notwithstanding any provision in this |
| 182 | +Agreement, |
| 183 | +Modifications may only be created and used by Customer as permitted by |
| 184 | +this |
| 185 | +Agreement and Modification Source Code may not be distributed to third |
| 186 | +parties. |
| 187 | +Customer will not assert against Stream.io, its affiliates, or their |
| 188 | +customers, |
| 189 | +direct or indirect, agents and contractors, in any way, any patent rights |
| 190 | +that |
| 191 | +Customer may obtain relating to any Modifications for Stream.io, its |
| 192 | +affiliates’, or their customers’, direct or indirect, agents’ and |
| 193 | +contractors’ |
| 194 | +manufacture, use, import, offer for sale or sale of any Stream.io products |
| 195 | +or |
| 196 | +services. |
| 197 | + |
| 198 | +8. DELIVERY AND ACCEPTANCE. The Software will be delivered electronically |
| 199 | +pursuant |
| 200 | +to Stream.io standard download procedures. The Software is deemed accepted |
| 201 | +upon |
| 202 | +delivery. |
| 203 | + |
| 204 | +9. IMPLEMENTATION AND SUPPORT. Stream.io has no obligation under this |
| 205 | +Agreement to |
| 206 | +provide any support or consultation concerning the Software. |
| 207 | + |
| 208 | +10. TERM AND TERMINATION. The term of this Agreement begins when the |
| 209 | +Software is |
| 210 | +downloaded or accessed and shall continue until terminated. Either party |
| 211 | +may |
| 212 | +terminate this Agreement upon written notice. This Agreement shall |
| 213 | +automatically terminate if Customer is or becomes a competitor of |
| 214 | +Stream.io or |
| 215 | +makes or sells any Competitive Products. Upon termination of this |
| 216 | +Agreement for |
| 217 | +any reason, (a) all rights granted to Customer in this Agreement |
| 218 | +immediately |
| 219 | +cease to exist, (b) Customer must promptly discontinue all use of the |
| 220 | +Software |
| 221 | +and return to Stream.io or destroy all copies of the Software in |
| 222 | +Customer’s |
| 223 | +possession or control. Any continued use of the Software by Customer or |
| 224 | +attempt |
| 225 | +by Customer to exercise any rights under this Agreement after this |
| 226 | +Agreement |
| 227 | +has terminated shall be considered copyright infringement and subject |
| 228 | +Customer |
| 229 | +to applicable remedies for copyright infringement. Sections 2, 5, 6, 8 and |
| 230 | +9 |
| 231 | +shall survive expiration or termination of this Agreement for any reason. |
| 232 | + |
| 233 | +11. OWNERSHIP. As between the parties, the Software and all worldwide |
| 234 | +intellectual |
| 235 | +property rights and proprietary rights relating thereto or embodied |
| 236 | +therein, |
| 237 | +are the exclusive property of Stream.io and its suppliers. Stream.io and |
| 238 | +its |
| 239 | +suppliers reserve all rights in and to the Software not expressly granted |
| 240 | +to |
| 241 | +Customer in this Agreement, and no other licenses or rights are granted by |
| 242 | +implication, estoppel or otherwise. |
| 243 | + |
| 244 | +12. WARRANTY DISCLAIMER. USE OF THIS SOFTWARE IS ENTIRELY AT YOURS AND |
| 245 | +CUSTOMER’S |
| 246 | +OWN RISK. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY |
| 247 | +KIND |
| 248 | +WHATSOEVER. STREAM.IO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY OF |
| 249 | +ANY |
| 250 | +KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT |
| 251 | +LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR |
| 252 | +PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS, EFFORTS, |
| 253 | +QUALITY OR QUIET ENJOYMENT. STREAM.IO DOES NOT WARRANT THAT THE SOFTWARE |
| 254 | +IS |
| 255 | +ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, WILL MEET ANY SPECIFIC |
| 256 | +NEED |
| 257 | +THAT CUSTOMER HAS, THAT ALL DEFECTS WILL BE CORRECTED OR THAT IT IS |
| 258 | +SUFFICIENTLY DOCUMENTED TO BE USABLE BY CUSTOMER. TO THE EXTENT THAT |
| 259 | +STREAM.IO |
| 260 | +MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND |
| 261 | +DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. |
| 262 | +CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE |
| 263 | +EXPRESS WARRANTIES IN THIS AGREEMENT. |
| 264 | + |
| 265 | +13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, |
| 266 | +STREAM.IO’S |
| 267 | +TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE |
| 268 | +OR |
| 269 | +THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR |
| 270 | +OTHERWISE, |
| 271 | +SHALL NOT EXCEED $100. IN NO EVENT WILL STREAM.IO BE LIABLE FOR ANY |
| 272 | +INDIRECT, |
| 273 | +CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OF ANY |
| 274 | +KIND |
| 275 | +WHATSOEVER, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR |
| 276 | +RELATING |
| 277 | +TO THE SOFTWARE EVEN IF STREAM.IO HAS BEEN ADVISED OF THE POSSIBILITY OF |
| 278 | +SUCH |
| 279 | +DAMAGES. CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED |
| 280 | +UPON |
| 281 | +ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT STREAM.IO WOULD NOT ENTER |
| 282 | +INTO |
| 283 | +THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. |
| 284 | + |
| 285 | +14. General. Customer may not assign or transfer this Agreement, by |
| 286 | +operation of |
| 287 | +law or otherwise, or any of its rights under this Agreement (including the |
| 288 | +license rights granted to Customer) to any third party without Stream.io’s |
| 289 | +prior written consent, which consent will not be unreasonably withheld or |
| 290 | +delayed. Stream.io may assign this Agreement, without consent, including, |
| 291 | +but |
| 292 | +limited to, affiliate or any successor to all or substantially all its |
| 293 | +business |
| 294 | +or assets to which this Agreement relates, whether by merger, sale of |
| 295 | +assets, |
| 296 | +sale of stock, reorganization or otherwise. Any attempted assignment or |
| 297 | +transfer in violation of the foregoing will be null and void. Stream.io |
| 298 | +shall |
| 299 | +not be liable hereunder by reason of any failure or delay in the |
| 300 | +performance of |
| 301 | +its obligations hereunder for any cause which is beyond the reasonable |
| 302 | +control. |
| 303 | +All notices, consents, and approvals under this Agreement must be |
| 304 | +delivered in |
| 305 | +writing by courier, by electronic mail, or by certified or registered |
| 306 | +mail, |
| 307 | +(postage prepaid and return receipt requested) to the other party at the |
| 308 | +address set forth in the customer agreement between Stream.io and Customer |
| 309 | +and |
| 310 | +will be effective upon receipt or when delivery is refused. This Agreement |
| 311 | +will |
| 312 | +be governed by and interpreted in accordance with the laws of the State of |
| 313 | +Colorado, without reference to its choice of laws rules. The United |
| 314 | +Nations |
| 315 | +Convention on Contracts for the International Sale of Goods does not apply |
| 316 | +to |
| 317 | +this Agreement. Any action or proceeding arising from or relating to this |
| 318 | +Agreement shall be brought in a federal or state court in Denver, |
| 319 | +Colorado, and |
| 320 | +each party irrevocably submits to the jurisdiction and venue of any such |
| 321 | +court |
| 322 | +in any such action or proceeding. All waivers must be in writing. Any |
| 323 | +waiver or |
| 324 | +failure to enforce any provision of this Agreement on one occasion will |
| 325 | +not be |
| 326 | +deemed a waiver of any other provision or of such provision on any other |
| 327 | +occasion. If any provision of this Agreement is unenforceable, such |
| 328 | +provision |
| 329 | +will be changed and interpreted to accomplish the objectives of such |
| 330 | +provision |
| 331 | +to the greatest extent possible under applicable law and the remaining |
| 332 | +provisions will continue in full force and effect. Customer shall not |
| 333 | +violate |
| 334 | +any applicable law, rule or regulation, including those regarding the |
| 335 | +export of |
| 336 | +technical data. The headings of Sections of this Agreement are for |
| 337 | +convenience |
| 338 | +and are not to be used in interpreting this Agreement. As used in this |
| 339 | +Agreement, the word “including” means “including but not limited to.” This |
| 340 | +Agreement (including all exhibits and attachments) constitutes the entire |
| 341 | +agreement between the parties regarding the subject hereof and supersedes |
| 342 | +all |
| 343 | +prior or contemporaneous agreements, understandings and communication, |
| 344 | +whether |
| 345 | +written or oral. This Agreement may be amended only by a written document |
| 346 | +signed by both parties. The terms of any purchase order or similar |
| 347 | +document |
| 348 | +submitted by Customer to Stream.io will have no effect. |
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