This Elementary Audio SDK License Agreement (“Agreement”) is entered between Elementary Audio, LLC, a Delaware company (hereinafter, “Elementary Audio” or “we”) and you (“Developer” or “you”) (Elementary Audio and Developer collectively referred to as the “Parties” or each a “Party”).
OBJECT OF AGREEMENT. This Agreement governs Elementary Audio’s SDK and all related software and binary components, as well as any documentation and any update, upgrades or bug fixes, including the free (“Basic SDK”) and payable "premium” version of the SDK (“Premium SDK”) and any additional payable addon content (“Add-On Content”) (collectively referred to as the "Elementary Audio SDK" or the “SDK”).
GRANT OF LICENSE. Subject to your full compliance with all of the terms and conditions of this Agreement, including any applicable payment of fees for the Premium SDK and other payable Add-On Content (collectively referred to as “Payable SDK Content”) downloaded or otherwise used (if applicable), we grant you a non-exclusive, perpetual, non-sublicensable (except as specifically provided for herein), non-transferable license to use the Elementary Audio SDK solely to: (i) download, install, and use the Elementary Audio SDK for the sole purpose of developing your applications that implement the Elementary Audio SDK (“Application”), and (ii) distribute, share, sublicense, or otherwise exploit such Application(s) only according to the license and terms provided in this Agreement.
LICENSE OBLIGATIONS AND RESTRICTIONS.
3.1. Permitted Exploitation of your Application(s). You may only distribute, sublicense or sell your Application(s) as follows:
3.1.1. End User Distribution: You may distribute, share, sublicense, reproduce, or distribute your Application(s) to your end users, provided that you adhere to the terms in this Agreement, including but not limited to paying applicable fees. You must not sublicense, or otherwise distribute the SDK, unless and only to the extent as specifically allowed under this Agreement.
3.1.2. Resellers: You may distribute your Application(s) to any reseller, but only to permit the reseller to (i) create copies of your Application and (ii) distribute your Application to end users in the same manner and subject to the same restrictions as your permitted end user distribution under this Section 3.1.1. Resellers have a limited license to create copies of and to distribute your Application as outlined above, and for no other purpose.
3.1.3. Restrictions on Distribution and Sublicensing: You shall be fully responsible and liable for any violation of the Agreement that results from any act or omission of you, and such act or omission shall constitute a breach by you under this Agreement.
3.1.4. Audit Rights. Should Elementary Audio have reasonable basis to believe that you have violated materials terms of this Agreement, then Elementary Audio shall have the right, upon reasonable notice, to audit/inspect any premises, computer(s), and networks on or in which the SDK is installed or used to monitor compliance with the terms of this Agreement, including but not limited to confirming details that are connected to your use of the SDK. If an audit reveals any unauthorized use, in addition to all other remedies available to Elementary Audio, you shall be responsible to Elementary Audio for all reasonable expenses related to the audit and the payment for any unpaid fees for actually used Payable SDK Content (if applicable).
3.2. Restrictions. Except as expressly and unambiguously authorized under this Agreement, you must not:
3.2.1. copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify, create derivative works from, or alter any part of the Elementary Audio SDK;
3.2.2. license or sublicense an Application, which integrates or otherwise uses Payable SDK Content, to end-users, without having paid the applicable fees, as further described in Sections 4 of this Agreement;
3.2.3. distribute or sell licenses of the SDK to third parties;
3.2.4. use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access the SDK or bypass the SDK or to interfere or attempt to interfere with the proper working of the SDK. Notwithstanding the foregoing, this shall not restrict you from fetching the SDK from our private registry using a continuous integration system or build system as long as you abide to the terms of this Agreement;
3.2.5. use the SDK for the benefit of a third-party, other than end users of your Application(s) as expressly authorized by this Agreement;
3.2.6. use the SDK to implement or enhance a product or service that is competitive with the SDK; modify and/or rename any Elementary Audio binary libraries; or otherwise engage in any activity that interrupts the proper workings of the SDK or is otherwise fraudulent, damaging, or illegal.
3.3. Any breach of this Section 3 shall be considered a material breach of this Agreement. Upon such material breach, this Agreement shall be considered terminated upon immediate effect, and Elementary Audio immediately revokes from Developer any and all licenses of the Elementary Audio SDK, whether paid or unpaid, and in its sole discretion, Elementary Audio reserves the right to refuse to license any Elementary Audio SDK to Developer in the future.
PAYABLE SDK CONTENT. Subject to the terms of this Agreement, the use of the Basic SDK, and any distribution of your Application that integrates the Basic SDK (as described in Section 3.1), does not require you to pay any fees to Elementary Audio. However, Elementary Audio may make additional Payable SDK Content available against a fee. Elementary Audio shall have the sole right and authority to determine the applicable fee(s) for any Payable SDK Content, at Elementary Audio’s sole discretion, including, but not limited to, any and all fee changes, adjustments, maintenance, or additions for any modifications and/or updates to such Payable SDK Content. Elementary Audio does not provide refunds for any made purchases, unless Elementary Audio chooses, at its sole discretion, to make an exception or is otherwise required by applicable law.
REPRESENTATIONS AND WARRANTIES. You represent and warrant that you: (i) are fully authorized to enter into this agreement; (ii) shall use the SDK in compliance with all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws; (iii) shall not (and shall not permit any third party to), directly or indirectly, take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any content or any material on or through the SDK, that: (a) infringes any patent, trademark, trade secret, copyright, right of publicity/privacy or other right of any third party or induces infringement thereof; (b) breaches any third-party contract or obligation; (c) is unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane.
TRADE SECRETS AND CONFIDENTIAL INFORMATION. You acknowledge that the SDK contains valuable trade secrets of Elementary Audio and, should you access any such trade secrets by use of the SDK, whether in a manner authorized by the license provided by this Agreement or not, you agree to maintain the confidentiality of the trade secrets of the SDK using at least the same degree of care that you use with your own confidential information, and shall continue maintain such confidentiality for so long as the information is a trade secret under the Uniform Trade Secrets Act.
INTELLECTUAL PROPERTY, OWNERSHIP, AND PROPRIETARY RIGHTS. As between Elementary Audio and Developer, the SDK and all intellectual property rights in and to the Elementary Audio SDK are, and shall at all times remain, the sole and exclusive property of Elementary Audio and are protected by applicable intellectual property laws and treaties. You shall not obscure, remove, or otherwise alter our copyright or trademark notices or other proprietary rights' notices affixed to or within the SDK or elsewhere. This Agreement does not transfer or assign to you any intellectual property right including any patent, design, industrial design, trademark, service mark, copyright or rights in any confidential information or trade secrets, in or related to the SDK, or any part thereof. The SDK and all copies thereof are only licensed to you under this Agreement pursuant to Sections 2 and 3 above. You acknowledge that there are no implied licenses granted under this Agreement, and all rights, save for those license rights expressly granted to Developer hereunder, shall remain with Elementary Audio. Developer agrees that nothing in this Agreement shall adversely affect any rights and recourse to remedies, including without limitation, injunctive relief that Elementary Audio may have under any applicable laws relating to the protection of Elementary Audio’s intellectual property or other rights. Any feedback or suggestions relating to the Elementary Audio SDK, and subsequent modifications thereof, provided to Elementary Audio by Developer shall be owned by Elementary Audio and Developer hereby assigns any and all rights in and to all such feedback, written code and suggestions to Elementary Audio.
WARRANTY DISCLAIMER. THE SDK IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SDK, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AVAILABILITY, PERFORMANCE, BANDWIDTH, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, WE DISCLAIM ANY WARRANTY THAT DEVELOPER’S USE OF THE SDK WILL BE AVAILABLE, UNINTERRUPTED OR ERROR FREE.
LIABILITY LIMITATION. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL ELEMENTARY AUDIO OR OUR CONTRACTORS, EMPLOYEES OR AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INFRINGEMENT, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE ELEMENTARY AUDIO SDK, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY EXCEED TEN DOLLARS. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
INDEMNITY. You agree that Elementary Audio shall have no liability whatsoever for your, or your end users’, use of the Elementary Audio SDK. You shall indemnify, defend and hold Elementary Audio harmless from any and all claims, damages, liabilities, costs, and fees (including reasonable attorneys' fees) arising from your or your end users' use of the Elementary Audio SDK or for any breach of this Agreement, including any breach of the representations and warranties you made herein.
TERM AND TERMINATION. The licenses granted under this Agreement are deemed to be perpetual, although they can be terminated in certain scenarios as set forth in this Section. You may terminate this Agreement at any time, for any reason or for no reason. Elementary Audio may terminate this Agreement if you violate or have violated, or if Elementary Audio reasonably believes that you violate or have violated, any provision of this Agreement. Elementary Audio reserves the right to cancel, amend, or modify the SDK at any time for any reason. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, you shall immediately destroy and remove from all computers, hard drives, networks, and other storage media all copies of the SDK, and shall so certify to us that such actions have occurred (including all cached ephemeral copies). Sections 5 (“REPRESENTATIONS AND WARRANTIES”), 6 (“TRADE SECRETS AND CONFIDENTIAL INFORMATION”), 7 (“INTELLECTUAL PROPERTY, OWNERSHIP, AND PROPRIETARY RIGHTS”), 8 (“WARRANTY DISCLAIMER”), 9 (“LIABILITY LIMITATION”), 10 (“INDEMNITY”), 13 (“GOVERNING LAW”), 14 (“PREVAILING PARTY”), and 15 (“GENERAL PROVISIONS”) shall survive termination of this Agreement.
EXPORT CONTROLS. You shall comply with all applicable export laws and restrictions and regulations and you shall not export, or allow the export or re-export of the SDK in violation of any such restrictions, laws, or regulations.
GOVERNING LAW. This Agreement shall be governed by California law, excluding conflict of law provisions. The parties agree to and submit to the exclusive jurisdiction of courts located in San Francisco, California. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
PREVAILING PARTY. In the event of any court action relating to enforcement of this Agreement, including injunctive relief, the non-prevailing party shall reimburse the prevailing party for all reasonable attorneys’ fees and costs, including expert witness fees, resulting therefrom.
GENERAL PROVISIONS. If any part of this Agreement is found void or unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms as if such provision were not included. This Agreement may only be modified by written agreement between the Parties. Updates or upgrades to the Elementary Audio SDK may be licensed to you by Elementary Audio with additional or different terms, and ongoing use of the SDK shall constitute consent to such newer terms. Elementary Audio further reserves rights, in its discretion, not to license updates or upgrades. This is the entire Agreement between Elementary Audio and you relating to the Elementary Audio SDK and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Elementary Audio SDK. This Agreement is not assignable by you or any third-party.