STUDIO SOFTWARE LICENSE AGREEMENT
This Studio Software License Agreement (this “Agreement”) governs your use of App Onboard, Inc.’s (“AppOnboard’s”) Studio software and any related code or documentation made available by AppOnboard (the “Software”). Subject to your acceptance of this Agreement, you may download and use the Software during the Term (as defined below) to create demonstration versions of your mobile applications or your application ideas or concepts (“Studio Projects”). BY DOWNLOADING THE SOFTWARE, YOU AGREE ON BEHALF OF YOU AND YOUR ORGANIZATION (TOGETHER, “LICENSEE”) TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR USE THE STUDIO SOFTWARE.
1. LICENSE GRANT
1.1. Scope of Use. Subject to the terms and conditions of this Agreement, AppOnboard hereby grants to Licensee, 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 Licensee for the purpose of creating Studio Projects.
Certain aspects of your license are governed by the subscription plan you have chosen (your “Subscription Plan”). You can review a summary of the different Subscription Plan levels here. If you are under an Enterprise Subscription Plan, then your use may be subject to additional or different terms (an “Enterprise Agreement”).
1.2. License Restrictions. In addition, Licensee will not: (a) copy the Software or related documentation(except that Licensee 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. You may not use the Software in connection with, and Studio Projects may not contain or promote, any content that:
a. violates any local, state, national, or international law or regulation;
b. violates, infringes, or misappropriates any third-party intellectual property rights, personal rights, or rights of privacy or publicity;
c. depicts or promotes graphic violence, tobacco, alcohol, drugs, or illegal gambling;
d. is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable;
e. contains or transmits any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation; or
f. 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 (collectively, “Supported Platforms”). For clarity, Licensee may not, whether during the Term or following the expiration or termination of this Agreement distribute or publicly display Studio Projects in or through any location, application, or network other than a Supported Platform. Licensee is responsible for complying with all terms and conditions applicable to Licensee’s use of each Supported Platform, including with respect to the distribution or display of Studio Projects.
1.3.3. Output Restrictions. Depending upon your Subscription Plan, you may be restricted with respect to the number of Studio Outputs you may publish or distribute. You can review such limitations by signing into your AppOnboard Studio account and viewing the individual monthly Studio Outputs remaining on your account. A “Studio Output” is is a file or a collection of files that are output by AppOnboard Studio after you complete the ‘Publish’ process in Studio’s user interface. 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. Licensee acknowledges and agrees that:
1.4.1. The Software uses Google Analytics to transmit certain Licensee usage information back to AppOnboard for support purposes and for AppOnboard’s internal business purposes, including improving and maintaining the Software. Such usage information may be re-identified with such user for the purpose of providing individualized support and information. In certain countries, we will obtain consent from the individual user before re-identifying such information.
1.4.2. Studio Projects are tracked by AppOnboard for purposes of reporting to Licensee, for invoicing purposes, for support purposes, and for AppOnboard’s internal business purposes.
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
2.1.1. Software. Licensee acknowledges and agrees that, as between AppOnboard and Licensee, 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 Licensee. “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 Licensee 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.
2.1.2. Studio Projects. The Studio Projects created by Licensee using the Software may contain Licensee’s characters, artwork, imagery, designs, software, trademarks, logos and other materials (“Licensee Materials”). As between AppOnboard and Licensee, Licensee is the sole owner of the Studio Projects and all Licensee 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.
2.2. Injunctive Relief. Licensee acknowledges that the Software is a unique, confidential, and valuable asset and trade secret of AppOnboard, and AppOnboard will have the right to obtain all equitable and legal redress which may be available to it for the breach or threatened breach of this Agreement including, without limitation, injunctive relief, without necessity of proving actual damages or posting a bond.
3.1. Updates. AppOnboard will, in its sole discretion, provide new features, corrections, changes and updates as they become available.
3.2. Customer Service. AppOnboard provides support in accordance with your Subscription Plan.
4.1. Invoicing. Licensee shall pay fees to AppOnboard in accordance with the applicable Subscription Plan. AppOnboard may modify the fees from time-to-time by providing at least 30 days’ prior notice (which may be to the email account provide by Licensee at registration). Licensee’s continued use of the Software following notice of a change to the fees will constitute Licensee’s acceptance of such modifications.
4.2. Payment. Unless otherwise agreed by AppOnboard in writing, Licensee shall be charged the applicable fees monthly in advance using the credit card information provided at registration. Licensee is responsible for keeping its credit card information up to date. All payments shall be in U.S. Dollars. Except where prohibited by applicable law, payments are non-refundable (including in the event that this Agreement terminates in the middle of the month or if Licensee’s downgrades its Subscription Plan).
4.3. Taxes. Customer is solely responsible for all taxes, fees, duties and governmental assessments (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
5.1. Term. This Agreement begins on the date that AppOnboard first provides Licensee with the necessary download link and authorization access codes or passwords to the Software andcontinues until earlier terminated as provided in this Section 5 (the “Term”).
5.2. Termination for Convenience. Licensee may, in its sole discretion, terminate this Agreement at any time. If Licensee terminates this Agreement, such termination will be effective on the last day of the calendar month during which it provides notice. AppOnboard may, in its sole discretion, terminate this Agreement at any time upon at least 30 days’ prior written notice to Licensee.
5.3. Termination for Breach. AppOnboard may terminate this License immediately upon notice if Licensee breaches any material provision of this Agreement, including Licensee’s payment obligations and any breach by Licensee of Section 1. In such event, AppOnboard will have no further obligations to Licensee.
5.4. 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 Licensee will cease its use of the Software and its distribution of any Studio Projects, including withdrawing Studio Projects from any third-party platform, network, or service. Sections 1.2, 1.3, 1.4, 2, 4.2 (until all payments are made); 4.3, 6, 7, 8, 9 and 10 of this Agreement and this Section 5.4 will survive termination for any reason. Upon any termination of this Agreement, Licensee shall promptly return to AppOnboard any and all AppOnboard Proprietary Information (as defined below), including all Software and related documentation provided by AppOnboard under this Agreement and all copies of the foregoing, or certify to AppOnboard that it has permanently deleted or destroyed all of the foregoing.
LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN RISK. THE SOFTWARE IS PROVIDED SOLELY ON AN “AS-IS” BASIS. APPONBOARD MAKES, AND LICENSEE RECEIVES, NO 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 WARRANTSTHAT THE SOFTWARE OR PLAYABLE DEMO WILL BE OPERABLE OR THAT LICENSEE’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
7.1. 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.
7.2. 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 YOUR USE OF THE SOFTWARE, EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT FIRST GIVING RISE TO SUCH LIABILITY.
7.3. 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 LICENSEE OF ITS CONFIDENTIALITY OBLIGATIONS; AND (C) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
8.1. By AppOnboard.
8.1.1. Indemnity. AppOnboard agrees to defend and hold Licensee and its directors, officers, employees and agents and its respective successors, heirs and assigns (collectively, the “Licensee 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 Licensee by AppOnboard infringes, violates, or misappropriates the Intellectual Property Rights of a third party. Notwithstanding the foregoing, AppOnboard shall have no obligation to indemnify Licensee to the extent that any Claim arises from (a) Licensee’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.
8.1.2. 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 Licensee’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 Licensee 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, Licensee shall immediately terminate use of the Software).
8.2. By Licensee. Licensee 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 Licensee Materials (including any Claim that the Licensee Materials infringe, violate, or misappropriate the Intellectual Property Rights of a third party); (b) arising from or relating to Licensee’s use of the Software other than as permitted under this Agreement; or (c) arising from or relating to any breach by Licensee of any third-party agreement, including the terms or conditions governing the use of any third-party platform, network,or service.
8.3. Process. A Licensee 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.
9.1. Confidential Information. Licensee will (and will ensure that its employees will) maintain the strict confidentiality of the Software and all information and materials contained in the Software and all information and materials conveyed by AppOnboard to Licensee hereunder, including but not limited to, financial information, pricing information, marketing information and the Software’s features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation and other technical information, plans and data (collectively, the “AppOnboard Proprietary Information”). This undertaking will not apply to information that becomes part of the public domain through no act or omission of Licensee or is in Licensee’s lawful possession prior to the date of this Agreement as demonstrated by written documentation. Licensee shall not use the AppOnboard Proprietary Information for any other purpose other than to use the Software as provided in this Agreement.
9.2. Non-Disclosure. Licensee will not permit anyone other than its own most trusted employees with a need to know to access or use the AppOnboard Proprietary Information. Licensee will not disclose the AppOnboard Proprietary Information to any third party and will not use the AppOnboard Proprietary Information other than as expressly authorized under this Agreement. Furthermore, Licensee: (a) recognizes that the unauthorized use or disclosure of AppOnboard Proprietary Information will give rise to irreparable injury to AppOnboard for which monetary damages may be an inadequate remedy; and (b) agrees that AppOnboard may seek and obtain injunctive relief against the breach or threatened breach of Licensee’s obligations under this Agreement, in addition to any other legal and equitable remedies which may be available to AppOnboard.
10.1. 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.
10.2. 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. LICENSEE MAY NOT ACT AS A CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, WITH RESPECT TO ANY CLAIM. CLAIMS MAY NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR CAN DECIDE ONLY LICENSEE’S INDIVIDUAL CLAIMS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. 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, Licensee acknowledges and agrees that in the event that Licensee breaches Section 1 or Section 9 of this Agreement, AppOnboard, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.
10.3. Assignment. Licensee may not sublicense, assign, delegate or otherwise transfer this Agreement or any of the related rights or obligations for any reason and any attempt by Licensee to sublicense, assign, delegate or transfer this Agreement or any of the related rights or obligations hereunder will cause the immediate termination of this Agreement. AppOnboard 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.
10.4. No Waiver. The failure of AppOnboard 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 a term or terms, and the obligation of Licensee in respect thereto will continue in full force and effect.
10.5. 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.
10.6. Entire Agreement. This Agreement and, if applicable, any Enterprise Agreement to which your organization is a party, constitutes the complete and exclusive statement of the terms and agreement between AppOnboard and Licensee and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect to the subject matter of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of your Enterprise Agreement, the Enterprise Agreement will control.
10.7. Amendment. This Agreement will be subject to modification or amendment only by written instrument duly executed by authorized representatives of both parties.
10.8. 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. Notices to Licensee shall be sent at the contact information provided by Licensee at registration. Notices to AppOnboard shall be sent to: App Onboard, Inc., 11620 Wilshire Blvd., Suite 600, Los Angeles, CA 90025; email: firstname.lastname@example.org. 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.