Developer License Agreement
This Developer License Agreement (this “Agreement“) is entered into by and between Finsemble, Inc. (“Finsemble“) and you and/or the entity on whose behalf you are downloading the Software (as defined below) (“you“). This Agreement forms a legally binding contract between you and Finsemble in relation to your use of the software libraries, reference implementations, and other related demonstration code (collectively, the “Software“).
In order to use the Software, you must first agree to this Agreement. You may not use the Software if you do not accept this Agreement. Among its other terms, this Agreement contains a binding arbitration provision and class action waiver.
By downloading or using the Software, you hereby agree to the terms of this Agreement, including the binding arbitration and class action waiver. You may not use the Software and may not accept this Agreement if you are a person barred from receiving the Software under the laws of the United States or other countries, including the country from which you use the Software. If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept this Agreement or use the Software on behalf of your employer or other entity. Accordingly, you and Finsemble acknowledge and agree as follows:
1. LIMITED LICENSE.
Subject to your complete and ongoing compliance with all the terms and conditions set forth in this Agreement, including without limitation all license limitations and restrictions set forth herein, Finsemble grants you the following limited, non-exclusive, non-transferable, non-sublicensable, revocable licenses to use, and (where applicable) authorize your employees to use, the Software internally solely in connection with building, developing and testing your own applications that interoperate with or incorporate the Software (“Applications“) for the purposes of evaluation.
By accessing or using the Software, you represent, warrant, and covenant that (a) you are a person or business entity engaged in the development of software applications, and (b) in the case of a business entity, you have the full power and authority to bind such entity to the terms of this Agreement.
You acknowledge that the foregoing license does not include any right to (i) redistribute, sell, lease, license, modify or otherwise way create any derivative works of any portion of the Software, or (ii) distribute, deploy, or otherwise utilize Applications on a public, production, commercial, or other similar purpose other than internal use for evaluation and the development of non-public, experimental Applications (any other public, production, commercial, or similar use requires a separate agreement with Finsemble), or (iii) use or implement any undocumented feature or API, or use any documented feature or API other than in accordance with applicable documentation. You agree not to do any of the foregoing.
Except as expressly provided herein, you may not (w) reproduce, distribute, publicly display, or publicly perform any part of the Software, (x) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Software not made available to you in source code form, (y) make or attempt to make any modification to, or otherwise create any derivative works of, the Software; or (z) remove, obscure, interfere with or circumvent any feature of the Software, including without limitation any copyright or other intellectual property notices, security, or access control mechanism. You agree that you will not use the Software to do anything illegal, including facilitating, promoting, or otherwise encouraging any illegal activities. You may not use the Software for any purpose other than interoperating with the Applications in a manner for which the Software is expressly designed.
You represent and warrant that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws“). In addition, if the Software is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Crimea, Cuba, Iran, North Korea, Sudan, or Syria) and that you are not otherwise prohibited under the Export Laws from receiving the Software.
ANY USE IN VIOLATION OF THE FOREGOING LIMITATIONS AND RESTRICTIONS IS STRICTLY PROHIBITED, AND UNLICENSED.
3. RESERVATION OF RIGHTS.
The Software is owned by Finsemble and licensed, not sold, to you. The Software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Software and related documentation (the “Materials“), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws (collectively, the “Intellectual Property Rights“). You agree that Finsemble or its subsidiaries or affiliated companies and/or its third-party licensors own all legal right, title and interest in and to the Software and Materials, including any and all Intellectual Property Rights. Finsemble reserves all rights not expressly granted in this Agreement. You do not acquire any right, title or interest to the Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement.
You agree that the form and nature of the Software that Finsemble provides may change without prior notice to you and that future versions of the Software may be incompatible with applications developed on previous versions of the Software. You agree that Finsemble may stop (permanently or temporarily) providing the Software (or any features within the Software) to you or to users generally at Finsemble’s sole discretion, without prior notice to you. Nothing in this Agreement gives you a right to use any of Finsemble’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
4. PURPOSE AND USE.
Finsemble agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any software applications that you develop using the Software, including any Intellectual Property Rights that subsist in those applications. If your application stores personal or sensitive information provided by users, it must do so securely. You agree that you will not engage in any activity with the Software, including the development or distribution of an Application that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party. You agree that you are solely responsible for (and that Finsemble has no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display. You agree that you are solely responsible for (and that Finsemble has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Finsemble or any third party may suffer) of any such breach.
Nothing in this Agreement will impair Finsemble’s right to independently develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, the Applications or any other products, software or technologies that you may develop, produce, market, or distribute.
5. PRIVACY AND INFORMATION.
If you provide Finsemble with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by you for the Software or the Service (“Feedback“), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Finsemble shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Materials or the Software. You hereby grant Finsemble a royalty-free perpetual, irrevocable, transferable, sublicensable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose, including to make and sell products and services.
6. THIRD PARTY SOFTWARE.
The Software consists of a package of components, including references to certain third party software (“Third Party Software“) that are provided by their authors under separate license terms (the “Third Party Terms“). Your use of the Third Party Software in conjunction with the Software in a manner consistent with this Agreement is permitted, however, you may have broader rights and/or restrictions under the applicable Third Party Terms. Finsemble cannot accept any responsibility for the Third Party Software or your use thereof.
7. TERMINATION OF THIS AGREEMENT.
This Agreement will continue to apply until terminated by either you or Finsemble as set out below. If you want to terminate this Agreement, you may do so by ceasing your use of the Software. Finsemble may at any time, terminate this Agreement with you: (a) if you have breached any provision of this Agreement; or (b) at Finsemble’s convenience. When this Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Finsemble have benefited from, been subject to (or which have accrued over time whilst this Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and paragraphs 2, 3, 4, 5, 6, 7, 9, 10, 11, 13 and 14 shall continue to apply to such rights, obligations and liabilities indefinitely.
8. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM Finsemble. YOUR USE OF THE SOFTWARE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. Finsemble FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Finsemble EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF THE SOFTWARE, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SOFTWARE, OR THE QUALITY OR CONSISTENCY OF THE SOFTWARE OR RESULTS OBTAINED THROUGH ITS USE.
9. LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Finsemble, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT Finsemble OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. IN NO EVENT WILL Finsemble’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT OR THE TERMS EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE SOFTWARE, IF ANY, OR $50 USD.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Finsemble, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) your use of the Software, (b) any application you develop on the Software that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by you with this Agreement or any applicable law or regulation.
11. CHANGES TO THIS AGREEMENT.
Finsemble may make changes to this Agreement as it distributes new versions of the Software. When these changes are made, Finsemble will make a new version of this Agreement available on the website where the Software is made available.
12. BINDING ARBITRATION; CLASS ACTION WAIVER.
You expressly intend and agree that any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, shall be finally resolved by arbitration. The tribunal shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. YOU AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING.
The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the tribunal’s power to rule on its own jurisdiction and the validity or enforceability of the agreement to arbitrate, the tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.
13. MISCELLANEOUS TERMS.
This Agreement constitutes the entire legal agreement between you and Finsemble and governs your use of the Software (excluding any services which Finsemble may provide to you under a separate written agreement), and completely supersedes any prior agreements between you and Finsemble in relation to the Software. You agree that if Finsemble does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Finsemble has the benefit of under any applicable law), this will not be taken to be a formal waiver of Finsemble’s rights and that those rights or remedies will still be available to Finsemble. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable so long as this Agreement, as so modified, does not substantially impair the respective expectations or reciprocal obligations of the parties. You acknowledge and agree that each member of the group of companies of which Finsemble is the parent shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other than as set forth in the preceding sentence, no other person or entity shall be a third party beneficiary to this Agreement. The rights granted in this Agreement may not be assigned or transferred by you without the prior written approval of Finsemble. You shall not be permitted to delegate your responsibilities or obligations under this Agreement without the prior written approval of Finsemble. This Agreement, and your relationship with Finsemble under this Agreement, shall be governed by the laws of the State of Virginia without regard to its conflict of laws provisions. You and Finsemble agree to submit to the exclusive jurisdiction of the courts located within Charlottesville, Virginia to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that Finsemble shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.