STUDIO ENTERPRISE TERMS & CONDITIONS
These Studio Software Enterprise Terms and Conditions (these “Terms”) governs Customer’s use of AppOnboard’s Studio software and any related code or documentation made available by AppOnboard (the “Software”). Subject to these Terms and the Order Form, to which these Terms are attached (the “Order Form,” and together with these Terms, the “Agreement”), Customer may use the Software during the Term to create demonstration versions of its mobile applications or application ideas or concepts (“Studio Projects”). Capitalized words used but not defined in these Terms have the meanings given in the Order Form.
1. LICENSE GRANT
1.1. Scope of Use. Subject to the terms and conditions of this Agreement, AppOnboard grants to Customer, during the Term, a limited, non-exclusive, non-transferable license to download, access, and use the Software in object code format on a computer owned or operated by Customer for the purpose of creating Studio Projects.
1.2. License Restrictions. Customer will not: (a) copy the Software or related documentation (except that Customer may make a reasonable number of copies for backup purposes); (b) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code form of the Software; (c) modify, adapt, translate or create a derivative work from the Software; (d) remove any proprietary notices, labels, or marks on the Software; (e) assign, sublicense, rent or transfer all or any part of the Software, including but not limited to the underlying technology, to any person or entity without the prior written consent of AppOnboard; or (f) unless expressly agreed by AppOnboard in writing, use the Software to create Studio Projects on behalf of any third party or otherwise to provide outsourcing, service bureau, time sharing, rental or any other services to any third party.
1.3. Playable Demo Restrictions.
1.3.1 Content Restrictions. Customer may not use the Software in connection with, and Studio Projects may not contain or promote, any content that:
violates any local, state, national, or international law or regulation;
violates, infringes, or misappropriates any third-party intellectual property rights, personal rights, or rights of privacy or publicity;
depicts or promotes graphic violence, tobacco, alcohol, drugs, or illegal gambling;
is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable;
contains or transmits any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation; or
contains malware, spyware, software viruses, or any other harmful computer code, files, or programs.
1.3.2 Distribution Restrictions. Studio Projects may be distributed and publicly displayed only as Google Play Instant and on such other platforms as AppOnboard may support as described on the AppOnboard website or as otherwise specified in the Order Form (collectively, “Supported Platforms”). Customer is responsible for complying with all terms and conditions applicable to Customer’s use of each Supported Platform, including with respect to the distribution or display of Studio Projects.
1.3.3 Output Restrictions. The number of Studio Outputs Customer may publish or distribute is limited to the number specified in the Order Form. A “Studio Output” is is a file or a collection of files that are output by AppOnboard Studio after the ‘Publish’ process in Studio’s user interface is completed. In Studio, each “Publish” action results in one or more outputs, depending on the number of Supported Platforms selected during the process.
1.4 Data Collection. Customer acknowledges and agrees that:
1.5 Third-Party Software. The Software contains certain third-party open-source software that is licensed under terms described here.
2. INTELLECTUAL PROPERTY RIGHTS
2.3.1 Software. Customer acknowledges and agrees that, as between AppOnboard and Customer, AppOnboard owns and retains all rights, title, and interest in and to the Software and all AppOnboard Intellectual Property. This Agreement will not constitute a sale of the Software and no title or proprietary rights to the Software are transferred to Customer. “AppOnboard Intellectual Property” means all of AppOnboard’s technology, inventions, discoveries, innovations, know-how, methods, processes, information, trademarks, software, documentation, and interfaces, including all improvements, modifications, works in process, derivatives, or changes, whether tangible or intangible, embodied in any form, and all Intellectual Property Rights in the foregoing, excluding for the avoidance of doubt any Customer Materials (as defined below). “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or later in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
2.3.2 Studio Projects. The Studio Projects created by Customer using the Software may contain Customer’s characters, artwork, imagery, designs, software, trademarks, logos and other materials (“Customer Materials”). As between AppOnboard and Customer, Customer is the sole owner of the Studio Projects and all Customer Materials, including all improvements, modifications, derivatives, or changes to the foregoing, and all Intellectual Property Rights in the foregoing, but excluding all AppOnboard Intellectual Property whether embedded in the Studio Projects or necessary for their use, display, or functionality. For clarity, Customer may use and distribute Studio Projects following the expiration or termination of this Agreement in Customer’s discretion, but such use is not supported by AppOnboard.
3.3 Updates. AppOnboard will, in its sole discretion, provide new features, corrections, changes and updates as they become available.
3.4 Customer Service. AppOnboard will provide the Support Services described in the Order Form. PAYMENT
4.3 Payment. AppOnboard shall invoice Customer and Customer shall pay the applicable fees as set forth in the Order Form. All payments shall be in U.S. Dollars.
4.4 Taxes. Fees are exclusive of all applicable taxes, fees, duties and governmental assessments (“Taxes”). Customer is solely responsible for all Taxes (except for taxes based on AppOnboard’s net income) that are imposed or become due in connection with the subject matter of the Agreement.
5. TERM AND TERMINATION
5.3 Term. This Agreement continues through the Term unless earlier terminated as provided in this Section 5.
5.4 Termination for Convenience. AppOnboard may, in its sole discretion, terminate this Agreement at any time upon at least 30 days’ prior written notice to Customer.
5.5 Termination for Breach. Either party may terminate the Agreement if the other party breaches any material provision of this Agreement and fails to cure such breach within 30 days of written notice specifying such breach.
5.6 Effect of Termination. Upon the effective date of termination of this Agreement for any reasons, the license grant under Section 1.1 shall immediately terminate and Customer will cease its use of the Software. Sections 1.2, 1.3, 1.4, 2, 4 (until all payments are made); 6.2, 7, 8, 9 and 10 of these Terms and this Section 5.4 will survive termination for any reason.
6. SOFTWARE WARRANTIES; DISCLAIMER
6.3 Software Warranties. AppOnboard represents and warrants that (a) for a period of 90 days following delivery, the Software will be fully functional in accordance with, and conform in all material respects to, the applicable documentation; and (b) as delivered, the Software will be free from viruses and other malware.
6.4 DISCLAIMER. CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN RISK. EXCEPT AS EXPRESSSLY PROVIDED IN THESE TERMS, THE SOFTWARE IS PROVIDED SOLELY ON AN “AS-IS” BASIS AND APPONBOARD MAKES, AND CUSTOMER RECEIVES, NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. APPONBOARD AND ITS LICENSORS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. NEITHER APPONBOARD NOR ITS LICENSORS WARRANTS THAT THE SOFTWARE OR PLAYABLE DEMO WILL BE OPERABLE OR THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.
7. LIMITATIONS OF LIABILITY
7.3 NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA, FROM THE DISABLING OF THE SOFTWARE, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY.
7.4 LIMIT ON DIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ARISING OUT OF CUSTOMER’S USE OF THE SOFTWARE, EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO APPONBOARD DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT FIRST GIVING RISE TO SUCH LIABILITY.
7.5 EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 7 WILL NOT APPLY TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH SUCH OBLIGATIONS; (B) A BREACH BY CUSTOMER OF ITS CONFIDENTIALITY OBLIGATIONS; AND (C) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
8.3 By AppOnboard.
8.3.1 Indemnity. AppOnboard agrees to defend and hold Customer and its directors, officers, employees and agents and its respective successors, heirs and assigns (collectively, the “Customer Parties”) harmless from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon any of them in connection with any third-party claim, action or proceeding (a “Claim”) that the Software as made available to Customer by AppOnboard infringes, violates, or misappropriates the Intellectual Property Rights of a third party. Notwithstanding the foregoing, AppOnboard shall have no obligation to indemnify Customer to the extent that any Claim arises from (a) Customer’s use of the Software in contravention of this Agreement or any applicable documentation; or (b) the combination or use of the Software with any other software, services, technology, content, or materials that were not provided by AppOnboard.
8.3.2 Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event that AppOnboard, in its sole discretion, reasonably determines, that the Software, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party Intellectual Property Right, AppOnboard shall, as Customer’s sole and exclusive remedy (but without limitation of AppOnboard’s obligations under Section 8.1.1), and at AppOnboard’s sole discretion, either: (a) obtain a license, at reasonable cost, for Customer to continue using the Software, or portion thereof; (b) modify the Software while retaining substantively equivalent functionality; (c) replace the affected Software with functionally equivalent software or services; or (d) terminate this Agreement in whole or in part (in which event, Customer shall immediately terminate use of the Software).
8.4 By Customer. Customer shall defend and hold harmless AppOnboard, its affiliates and its and their directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “AppOnboard Parties”) against any Losses incurred by or imposed upon any of them in connection with any Claim (a) arising from or relating to any Customer Materials (including any Claim that the Customer Materials infringe, violate, or misappropriate the Intellectual Property Rights of a third party); (b) arising from or relating to Customer’s use of the Software other than as permitted under this Agreement; or (c) arising from or relating to any breach by Customer of any third-party agreement, including the terms or conditions governing the use of any third-party platform, network, or service.
8.5 Process. A Customer Party or AppOnboard Party requesting indemnification (the “Indemnified Party”) will (a) provide the party providing indemnification hereunder (the “Indemnifying Party”) with prompt notice of any such Claim (provided, however, that failure to do so shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice to the Indemnifying Party as a direct result of such failure); (b) permit the Indemnifying Party to assume and control the defense of such action upon the Indemnifying Party’s written notice to the Indemnified Party of its intention to indemnify; and (c) upon the Indemnifying Party’s written request, provide to the Indemnifying Party all available information and assistance reasonably necessary for the Indemnifying Party to defend such Claim. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense and settlement of any such Claim with counsel of its choice. Indemnifying Party will not enter into any settlement or compromise of any such Claim, which settlement or compromise would result in any liability to any Indemnified Party, without the Indemnified Party’s prior written consent.
9.3 Confidential Information. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, user manuals, data, pricing, financial information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute the Confidential Information of each party.
9.4 Obligations. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Receiving Party will use at least the same level of care to maintain the Confidential Information of the Disclosing Party as it uses to maintain the confidentiality of its own non-public information and in no event less than a reasonable degree of care. The obligations in this Section shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (a) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (b) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (c) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (d) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information.
9.5 Required Disclosures. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information.
9.6 Return of Information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other party all of such other party’s Confidential Information (including in the case of AppOnboard’s Confidential Information, the Software and all copies) or certify to the Disclosing Party in writing that all such material has been destroyed.
10.3 Choice of Law. This Agreement and any matters relating to it will be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of laws.
10.4 Arbitration. Any action or proceeding arising out of or relating to the Agreement shall be resolved by arbitration in Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration. Notwithstanding the foregoing, Customer acknowledges and agrees that in the event that Customer breaches Section 1 or in the event of a breach of Section 9 of this Agreement, the non-breaching party, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.
10.5 Assignment. Neither party may sublicense, assign, delegate or otherwise transfer this Agreement or any of the related rights or obligations for any reason and any attempt by the a party to do so shall be void. Notwithstanding the foregoing, either party may assign this agreement to a corporate affiliate or in connection with a merger, a sale of all or substantially all of AppOnboard’s assets or other change of control transaction. This agreement shall be binding upon each party’s successors and permitted assigns.
10.6 No Waiver. The failure of either party to insist, in any one or more instances, upon the performance of any term or terms of this Agreement will not be construed as a waiver or relinquishment of its rights to such performance or future performance of such term or terms.
10.7 Severability. In the event that an arbitrator or court of competent jurisdiction determines that any provision or portion of a provision of this Agreement is invalid, unlawful, or unenforceable to any extent, the parties agree that such provision will be deemed to be modified to the minimal extent necessary to make such provision enforceable while still retaining the intent of the parties. In such event, the remainder of this Agreement and its application to other persons will not be affected thereby, and such remaining provisions of this Agreement will continue to be valid and may be enforced to the fullest extent permitted by law.
10.8 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms and agreement between AppOnboard and Customer and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect to the subject matter of this Agreement.
10.9 Amendment. This Agreement will be subject to modification or amendment only by written instrument duly executed by authorized representatives of both parties.
10.10 Notices. All notices provided under this Agreement shall be in writing, delivered personally, sent by email, or sent by overnight courier, registered or certified mail to the addresses given in the Order Form or such other address that a party may specify by written notice given in accordance with this Section 10.8. All such notices shall be deemed to have been given: (a)upon receipt when delivered personally or (b)upon verification of receipt via email, overnight courier, registered or certified mail.