License Terms and Conditions
Developerrr and Licensee agree that these Developerrr license terms and conditions ( “ The Terms”) shall govern the relationship between the parties as to any Developerrr products or services provided or to be provided to licensee as set forth in a document incorporating these terms ( an “ Ordering Document “ ). As to any particular ordering document, the ordering document, the services definitions and service- specific terms and conditions, and these terms together constitute the agreement of the parties and are referred to collectively herein as the “ Agreement”. In the event of any conflict between the ordering document and these terms, these terms shall prevail unless the ordering document expressly provides that it is modifying these terms with respect to such agreement.
Licensee and Developerrr agree as follows:
“Developerrr” has the meaning set forth in Section 13.11 below.
“Licensee” means the party to whom Developerrrr is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination, or modification of this Agreement.
SUBSCRIBED SERVICES, GRANT OF LICENSE
Developerrr, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “Developerrr Technology”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document. Developerrr will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords. Subject to the terms and conditions herein, Developerrr grants to Licensee a non-exclusive, non-transferrable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement.
The Services will be offered as-is and as they are updated and changed over the course of the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Certain portions of the Services may be provided by Developerrr’s third party licensors, and Developerrr’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with Developerrr. Features and functions of the Developerrr Technology are provided “as is” and as they may be modified, supplemented, or removed from time to time in Developerrr’s sole discretion. Developerrr shall not be liable to Licensee for any changes made to any Service, provided that the delivered good or service substantially complies with the Ordering Document's description.
Ownership. Licensee acknowledges and agrees that, as between Licensee and Developerrr, the Licensed Materials, the Developerrr Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or Developerrr Technology) are the property of Developerrr, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or Developerrr Technology, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, Developerrr, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and Developerrr Technology, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein. All other trademarks, registered trademarks, product names, and company names or logos mentioned in or on the Developerrr Technology are the property of their respective owners. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Developerrr nor any endorsement, sponsorship, or recommendation of Developerrr by any such person or entity.
Quality Guarantee, Availability. A "Licensed Materials Contact" is a record about a natural person that is viewable in Developerrr's database and made available to Licensee as part of any of the Services. This record must at the very least include the individual's name and company affiliation. Developerrr will destroy the record if, at any time during the Term, more than 5% of the Licensed Materials Contacts do not work for (or are otherwise linked with) the specified company.
Support. For the purpose of assisting Licensee and Authorized Users in gaining access to the Licensed Materials, Developerrr will offer reasonable assistance and ongoing support. Between the hours of 5:00 a.m. and 5:00 p.m. Pacific Time (Monday through Friday), Developerrr staff members are available by phone, email, or online chat for feedback, problem-solving, or general inquiries. Developerrr will make reasonable efforts to respond to support requests within 24 business hours.Premium support services are subject to any service-specific terms and conditions included with the Ordering Document.
AUTHORIZED USE OF LICENSED MATERIALS AND DEVELOPERRR TECHNOLOGY, RESTRICTIONS
Authorized Users. Licensee shall be entitled to designate persons as Authorized Users up to the number of Authorized Users subscribed as stated in the Ordering Document. Each Authorized User will be given a unique username and password. Such usernames and passwords are strictly prohibited from sharing and from being used by anybody who is not an Authorized User. If any Authorized User’s login information is revealed to any person who is not an Authorized User but who meets the criteria of Section 2.2 hereof, such disclosure shall constitute Licensee’s subscription as of the time of such disclosure to the number of additional Authorized Users equal to the number of persons to whom such information was disclosed.If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by Developerrr as Licensee’s subscription to such additional number of Authorized Users. In the event of such a subscription, Developerrr may impose an extra Subscription Fee on the Licensee in an amount equivalent to the existing per-Authorized User rate times the length of time from the date of designation to the expiration of the then-current Term. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials that are outlined below. Authorized Users may be required to accept an end-user license agreement agreeing to Developerrr's privacy policy and representing that they are authorized to access the Services on Licensee's behalf, and Licensee acknowledges and agrees that Authorized Users must provide Developerrr with certain identifying information, including their name and a business email address.
Qualification of Authorized Users. Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with Developerrr’s prior consent and provided Licensee takes reasonable steps to ensure such non-employee uses the Services only in accordance with this Agreement. Any Authorized User's permission to access the Services will be automatically terminated without further action from Developerrr if their employment, which was in existence on the date they were designated as Authorized Users, ceases. If the termination mentioned in the previous sentence occurs, the licensee must inform the developer right away and take all necessary precautions to prevent that individual from accessing the Services. Licensee may reassign Authorized User designations in good faith, subject to the foregoing qualification requirements.
Authorized Uses, Restrictions. Licensee should only access or use the Services for business- to – business sales, marketing, recruiting , or business development of Licensee and no other purpose. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Subject to Licensee’s compliance with all applicable laws, rules, and regulations, Licensee may use the Services to: (i) view the Licensed Materials; (ii) communicate with any Licensed Materials Contact in a manner that relates to such person’s profession, business, or employment; and (iii) identify potential sales opportunities, research Licensee’s existing customers and prospects, and otherwise analyze the Licensed Materials in a way related to Licensee’s business-to-business sales, marketing, recruiting, and business development activities. Any Licensed Materials, Authorized User login credentials, or access to the Services by anyone who is not an Authorized User is strictly prohibited by the Licensee. Licensee shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Except through services provided by Developerrr or its affiliates, Licensee shall not use the Licensed Materials to create audience segmentation for or otherwise place digital ads or ads in digital media (also known as onboarding or digital activation). No portions of the Services or Licensed Materials must be incorporated by the Licensee into its own products or service. Upon expiration or termination of this Agreement for any reason, Licensee must stop accessing the Services and must stop using the Licensed Materials in any way. Despite the aforementioned, where Licensee has obtained responsive communication from a Licensed Materials Contact through the use of the Licensed Materials in a manner permitted by this Agreement, Licensee shall not be required to delete such Licensed Materials Contact record upon expiration or termination hereof and may continue to use such information in a manner otherwise compliant with this Agreement. Licensee is solely liable for any communications between Licensee or any Authorized User and any Licensed Materials Contact. Licensee must not use the Services to determine a consumer’s eligibility for (a) credit or insurance for personal, family or household purposes, (b) employment or (c) a government license or benefit or (d) any other purpose governed by the Fair Credit Reporting Act (FCRA).
Permitted Use of Developerrr Technology, Restrictions. Licensee is allowed to use the Developerrr Technology solely for the purpose of accessing and using the Licensed Materials in accordance with the terms of this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Developerrr Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the Developerrr Technology or related documentation; (iii) distribute or display any of the Developerrr Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the Developerrr Technology, or use the Developerrr Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the Developerrr Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Developerrr Technology or related documentation; (vii) disclose the results of any Developerrr Technology or program benchmark tests to any third parties without Developerrr’s prior written consent; (viii) employ any measure intended to circumvent limitations to purchased credits or Authorized Users; or (ix) use automated means, such as bots or crawlers, to access any Developerrr Technology or extract information therefrom (except such means as are included within the Developerrr Technology, such as Integration Tools, or such other means as are expressly approved in advance in writing by Developerrr). Licensee may use Developerrr Technology only in accordance with this Agreement and not for the benefit of any third party, except with Developerrr’s express prior written permission.
Limitations on Use of the Services. Licensee must use the Services in a responsible and professional manner consistent with the intended and permitted uses set forth herein and consistent with standard industry practice. Licensee shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the Developerrr Technology. Licensee will not use the Licensed Materials or Developerrr Technology for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Licensee has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. Developerrr may use technological means to impose reasonable use limits to forbit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable). If Licensee's access to the Services is limited under this paragraph, Licensee may request that the limit be removed, and Developerrr may, in its sole and absolute discretion, remove or modify a particular limitation if Licensee's proposed use is in good faith and otherwise consistent with this Agreement.
6 Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any CRM, marketing automation, or sales enablement system for the purpose of allowing persons who are not Authorized Users to access or use the Licensed Materials.
Unauthorized Access and Use. In the event Developerrr has a reasonable belief that Licensee or any Authorized User is engaged in or facilitated any unauthorized access or use of the Licensed Materials or Developerrr Technology in violation of this Agreement, Developerrr, in its sole discretion, may immediately suspend Licensee’s access to the Licensed Materials and/or Developerrr Technology until such violation is resolved to Developerrr’s reasonable satisfaction. A suspension will not affect the Term of this Agreement or the Licensee’s obligation to pay the Subscription Fee, and Developerrr will not be liable to the Licensee for such period of suspension.
TERM AND TERMINATION
Term. The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 3.2 hereof, the “Term”). The Agreement is not cancellable and must remain in effect until it expires or is earlier terminated according to its terms.
Automatic Extension of the Term. On the date that is 60 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. If the term is extended under this paragraph, then : (1) Licensee shall continue to be subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the Subscription Fees to be paid to Developerrr for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Licensee was subscribed as of the Extension Date, plus 10% of such fee, plus any applied discount, multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term and shall be payable as invoiced. Developerrr will invoice Subscription Fees for any period of extension on an annual basis or in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date, in Developerrr’s discretion.
Termination. Any party may terminate this Agreement immediately, without further responsibility to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. Upon mutual agreement, the parties may terminate this Agreement at any time.
Effect of Termination
Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and accepts that its access to the Services may be automatically terminated, all passwords and user accounts removed, and all information that has been submitted into Developerrr’s systems by Licensee destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
Termination by Developerrr. If this Agreement is terminated by Developerrr due to an uncured material breach by Licensee, all Subscription Fees payable to be paid to Developerrr for the remainder of the then-current Term must become immediately due and payable to Developerrr, and Licensee shall promptly remit all such fees to Developerrr.
Termination by Licensee. If this Agreement is terminated by Licensee due to an uncured material breach by Developerrr, Developerrr must immediately refund the pro-rata amount of any pre-paid Subscription Fees attributable to periods after the date of such termination.FEES AND TAXES
1 Licensee shall pay all fees stated in the Ordering Document and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). All Subscription Fees are due upon execution of the Ordering Document, or notice of a deemed subscription as provided herein, and payable on the terms set forth therein. If no payment schedule is agreed for any Subscription Fees, the full amount must be payable within 30 days of Developerrr’s transmission to Licensee of an appropriate invoice. All amounts payable by Licensee under this Agreement shall be paid to Developerrr without setoff or counterclaim, and without any deduction or withholding. Developerrr’s acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of Developerrr’s right to unpaid amounts.
Developerrr may, in its sole discretion, take any or all of the following actions if Licensee fails to pay Subscription Fees on time :(i) restrict or suspend Licensee’s access to the Licensed Materials until all past-due payments are made, (ii) terminate this Agreement, or (iii) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees become due and payable immediately. Any late payments may be subject to interest charges from Developerrr at a rate of 1.5 percent per month (or, if less, the highest rate permissible by law). The Term of this Agreement and Licensee's obligation to pay the Subscription Fee are unaffected by any restriction or suspension of Licensee's online access to the Licensed Materials during a time of non-payment.
Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with regard to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. All fees, rates, and estimates do not include sales taxes, unless the Ordering Document specifically states otherwise. If Developerrr believes any such tax applies to Licensee’s subscription and Developerrr has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides Developerrr with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless Developerrr and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of Developerrr to remit amounts collected for such purpose from Licensee. Developerrr is solely liable for all taxes related to Developerrr's net income, assets, payroll, property, and workers.
DATA PROTECTION AND CONFIDENTIALITY
Licensee acknowledges and agrees that Developerrr will operate in accordance with its published Privacy Policy (available at www.developerrr.com/company/privacy or as Developerrr may otherwise indicate), which is incorporated herein by reference.
“Confidential Information” of a party refers to that party’s (or its affiliate’s): inventions, discoveries, improvements, and copyrightable material that has not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. The Licensed Materials (which are subject to other restrictions under this Agreement) and other business contact or firmographic information about third parties are not considered to be "Confidential Information." All business terms of this Agreement, including, but not limited to, pricing and access, shall be regarded as Developerrr's Confidential Information.
All Confidential Information of the other party obtained prior to or during the Term of this Agreement must be kept confidential, and each party is required to protect the confidentiality of such information with the same degree of care that it uses to protect its own confidential information, but in no event less than reasonable care. Without the other party's prior written consent,a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The aforementioned restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to being obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; (c) became generally available to the public, by publication or otherwise, through no fault of such party or (d) was developed independently by the receiving party as evidenced by written records without reference to the Confidential Information of the other party. The parties shall take all reasonable measures to ensure that the employees and subcontractors of the parties comply with the terms of this section. Upon receipt by the receiving party of a written request from the disclosing party, all Confidential Information shall be returned to the disclosing party or destroyed. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or legal process, provided, however, the receiving party will (unless prohibited by law or legal process): (a) give the disclosing party prior written notice of such disclosure to afford the disclosing party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the disclosing party, at the disclosing party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
Personal Information. Any time one of the parties transmits or receives personal information under this Agreement, that party is responsible for complying to all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information. To the extent that personal data obtained by Licensee under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”) or the retained version of the GDPR applicable in the UK (the “UK GDPR”, together with the GDPR the “UK/EU GDPR”), each party agrees that it is a “controller” with respect to such data as defined in the GDPR and agrees to comply with all applicable provisions. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any information subject to the UK/EU GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the applicable UK/EU GDPR, or Licensee has another lawful basis to process such information. Within the Developerr Technology,Developerrr may publish a list of people who have asked to have their personal information deleted from Developerrr's database. Unless Licensee has established an independent legal basis to process such person's personal information, Licensee agrees to review such list on a regular basis (no less frequently than once per month) and to delete any Licensed Materials Contact records relating to such persons in its possession. To the extent that any Services may involve Developerrr receiving personal data from Licensee that is subject to the UK/EU GDPR, the attached Appendix A shall set out the status and responsibilities of the parties in relation to such personal data.
Related Information. Developerrr has the right to access, collect, and use any information provided by or pertaining to Licensee and Licensee’s use of the Services (“Related Information”) for customer and technical support, for regulatory and third party compliance purposes, to safeguard and uphold Developerrr’s rights, to monitor compliance with and investigate potential violations of the terms of this Agreement, and to suggest additional products or services to Licensee. Developerrr may share this information with Developerrr’s partners or affiliates for the same purposes. Licensee grants Developerrr and Developerrr’s affiliates the perpetual right to use Related Information and any feedback provided by Licensee for purposes such as to test, develop, improve, and enhance Developerrr’s products and services, as well as to create and own derivative works based on Related Information and feedback, so long as neither Licensee, Authorized User nor any other person can be identified as the source of such information.
Licensee Data. Licensee is solely liable for all data, graphics, images, files, information, text, voice content, recordings, and other content and materials that are collected, uploaded, posted, delivered, provided, or otherwise transmitted or stored by Licensee in connection with Licensee’s use of the Services (collectively, “Licensee Data”), and Licensee represents and warrants that it has all rights necessary to grant the licenses herein without violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. Licensee must be solely responsible for making any required notices (including without limitation any privacy notices required by applicable local, state, federal, and international laws and regulations) and for obtaining any required consents sufficient to authorize Developerrr’s performance of its obligations and exercise of its rights as set forth in this Agreement.
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that: (1) it is duly organized and validly existing and authorized to conduct business in the jurisdictions where it operates; and (2) it has the requisite power and authority to enter into this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, encourage, engage in, or permit behavior that violates or would violate any applicable law, rule, or regulation or any right of any third party.
Developerrr represents and warrants that it possesses all necessary authority and permissions to grant Licensee with access to the Licensed Materials and Developerrr Technology.
REMEDIES
Remedies not Exclusive. Unless specifically specified herein, no remedy offered in this Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity.
Provisional Remedies. Each party acknowledges that any unauthorized disclosure of Confidential Information or, with respect to the Licensee, Licensed Materials, may result in irreparable harm to the other party for which money damages may not be adequate, and that, in the event of such disclosure, such party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
Liquidated Damages. Licensee recognises that the Licensed Materials are only for its own use and that disclosure of the Licensed Materials Contacts to a third party or the use of the Licensed Materials Contacts for the profit of or on behalf of any third party will result in unquantifiable harm to Developerrr.To avoid the time and expense of quantifying damages, if Licensee, negligently or intentionally, discloses Licensed Materials Contacts to a third party, permits a third party to access any Licensed Materials Contact records through use of login credentials to Developerrr Technology issued to any Authorized User, or uses Licensed Materials Contacts for the benefit of or on behalf of any third party, then Developerrr shall be entitled to damages from Licensee in the liquidated amount equal to $2.00 per Licensed Materials Contact record that is so disclosed, used, or made available per third party recipient or beneficiary, as applicable.
ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER
Attorney Fees. The party that prevails in any dispute under this Agreement is entitled to reimbursement for its reasonable costs and expenses that were actually expended in an effort to enforce the terms of this Agreement, including reasonable legal fees.
Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be resolved by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration must be heard by a single arbitrator. The arbitration award shall be final and binding, and such award may be entered in any court having jurisdiction. This section shall not prevent parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy granted under applicable law, except that the arbitrator shall not be permitted to award: (1) punitive, exemplary, or multiple damages under any legal theory, except in the event of a party’s or its agent’s gross negligence or intentional misconduct; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 10 (Limitation of Liability) of this Agreement.
Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the authority to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
Litigation Claims. The following claims (“Litigation Claims”) shall be litigated rather than arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s Confidential Information; (c) claims by Developerrr to collect Subscription Fees; and (d) claims for mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.
INDEMNIFICATION
Licensee agrees to indemnify, defend, and hold harmless Developerrr and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or related to (1) Licensee’s access or use of the Licensed Materials in violation of any law, (2) Licensee’s violation of any provision of this Agreement, (3) Licensee’s sending of any information, messages, or materials to any Licensed Materials Contact (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (4) the use of any Licensed Materials or Developerrr Technology by any third party to whom Licensee has granted access (including access obtained by such third party through use of the usernames and passwords assigned to Licensee and its personnel).
Developerrr shall indemnify Licensee for any damages ultimately awarded by any court of competent jurisdiction against Licensee in, or for amounts paid by Licensee under a settlement approved by Developerrr in writing of, any legal proceeding brought by a third party alleging that the Licensed Materials or Developerrr Technology infringes upon or violates the intellectual property rights of any such third party. The foregoing indemnification obligations do not apply if (i) the allegation does not state with specificity that the Services are the basis of the claim against Licensee; (ii) a claim against Licensee arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Developerrr, if the Services or use thereof would not infringe without such combination; or (iii) a claim against Licensee arises from Licensee’s breach of this Agreement.
As a condition to any right to indemnification under this Agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim or proceeding subject to indemnification hereunder.
LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law and expert for instances of a party’s or its agent’s gross negligence or intentional misconduct, in no event will either party be liable to the other party for any punitive, exemplary, multiple, indirect, consequential, special, lost business, lost or corrupted data, or lost profits damages arising from or relating to this agreement, whether foreseeable or unforeseeable, even if advised of the possibility of such damages. The termination of this agreement by written notice to Developerrr and a prorated refund of the subscription fees paid by the licensee are the licensee's sole and exclusive remedies for any uncured breach by Developerrr of its obligations under this agreement. The amount actually paid to Developerrr by Licensee pursuant to this Agreement in the twelve (12) month period prior to the event giving rise to Licensee's cause of action shall constitute Developerrr's maximum Liability to Licensee . Expecting liability arising from licensee or its agent’s gross negligence or international misconduct or licensee\s indemnification obligations hereunder, licensee’s maximum liability to Developerrr shall be two times (2x) the amount of the subscription fee.
DISCLAIMER OF WARRANTIES
Except for any express representations and warranties stated herein, the licensed materials, Developerrr Technology, and any other services are provided “ as is “ and on an “ as available “ basis , and neither party makes any additional representation or warranty of any kind, whether express, implied ( either in fact or by operation of law), or statutory, as to any matter whatsoever and each party expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non- infringement. Neither party will have the right to make or pass on any representation or warranty on behalf of the other party to any third party.
Developerrr does not represent, covenant, warrant, or promise that any of the services maybe used or relied upon by licensee or any other party to comply with any law, rule, regulation, industry standard, or policy, nor that any of the services will render licensee nor any other party compliant with any law, rule, regulation, industry standard, or policy, and Developerrr expressly disclaims to the fullest extent permissible by applicable law any such representation, covenant, warranty , or promise. If and to the extent that licensee uses any of the services with the intention of or for the purpose of complying with any law, rule , regulation, industry standard, or policy, licensee acknowledges and agrees that such services are, in that regard, provided “ as is” , and licensee assumes full responsibility for its compliance. Licensee acknowledges and agrees that Developerrr shall have no responsibility to licensee for licensee’s use of or reliance on any services for such purposes.
AUDIT
The Licensee must keep complete and accurate records of the Licensee's usage of the Licensed Materials and Developerrr Technology during the Term of this Agreement and for two (2) years after its expiration or termination, sufficient to prove compliance with this Agreement. Upon reasonable advance notice and during normal business hours, Licensee must permit Developerrr and its auditors to investigate such records and any systems used by Licensee in connection with the Licensed Materials. Any such audit will only check to verify the Licensee's compliance with the terms of this Agreement. Unless the audit reveals material non-compliance with this Agreement, in which case Licensee must reimburse Developerrr for its reasonable out-of-pocket expenses incurred in performing such audit, any audit done under this paragraph shall be at Developerrr's expense.
MISCELLANEOUS PROVISIONS
Marketing. Licensee hereby authorizes Developerrr to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
Assignment. Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to Developerrr, and (2) Licensee may not assign this agreement to any competitor of Developerrr without Developerrr’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
Notices. In order to receive notices under this Agreement, Licensee must provide an email address. All notices and other communications allowed or required by this agreement must be sent via electronic mail to the email address provided by the other party for that purpose, and are considered given when sent. Notices to Developerrr must be sent to legal@Developerrr.com. Developerrr may provide notices under this agreement by any means reasonably designed to serve Licensee with actual notice thereof if Licensee fails to submit an email address for notices.
Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
Suggestions and Feedback. Developerrr must have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the operation of the Services provided that such information does not contain any Licensee Confidential Information.
Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all past communications, understandings, and agreements regard to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to Developerrr Services shall be governed by the terms hereof.
Amendment. Developerrr might suggest amendments to this Agreement at any time by giving notice of the admendments in a way allowed by this agreement. Unless Licensee notifies Developerrr that it does not accept such amendments , such proposed amendments shall be regarded accepted and become a part of this Agreement thirty (30) days after the date such notice is given. – Done. If Licensee notifies Developerrr that it does not agree with the proposed amendments, the existing terms will remain in full force and effect and the proposed amendments will not take effect. Any other modification or claimed waiver of any provision of this Agreement must be made in writing and be signed by the authorized representatives of Developerrr and licensee.
Force Majeure. Neither Developerrr nor any of its affiliates will be held responsible for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Developerrr and Licensee both guarantee that they are not included on any U.S. government denied party list . Licensee will not permit any Authorized User to access or use any Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
Unenforceability. If any provision of this Agreement is found to be unenforceable, that provision shall be construed either by modifying it to the minimum extent necessary to make it enforceable ( if permitted by law) or disregarding it ( if not permitted by law), and the remaining provisions shall continue in full force and effect .Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.
Developerrr Contracting Entity, Governing Law, and Venue. The meaning of Developerrr, the law governing this Agreement, and the jurisdiction in which disputes shall be adjudicated are set forth in the table below, in each case based on where the Licensee is domiciled.
If Licensee is domiciled in:The Developerrr entity entering this Agreement is:Governing law is:Courts with exclusive jurisdiction are located in:Arbitration Proceeding Location:The United Kingdom or a country in the European Economic Area “EEA”Developerrr is a trading name of Sprint Kingdom LtdEngland and WalesLondon, EnglandLondon, England[1]1 The parties hereby agree to exclude all rights to seek a determination by the court of a preliminary point of law under section 45 of the Arbitration Act 1996 and all rights of appeal on a point of law from any arbitration award under section 69 of the Arbitration Act 1996. A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any provision of this Agreement.
2 Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in the State of Washington for purposes of any lawsuit seeking to enforce this Agreement, and also agrees that the exclusive venue for any litigation, action, suits, or proceeding arising out of or relating to this Agreement shall lie in the County Court in and for Clark County, Washington, or, if federal jurisdiction exists, in the United States District Court for the Western District of Washington.
United States Government End-Users. The Services provided by Developerrr are “commercial items” consisting in part of “commercial computer software” and “computer software documentation,” as such terms are used in the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”). In accordance with FAR 12.211 (Technical data) and FAR 12.212 (Computer software), and DFARS 227.7102 (Commercial items, components, or processes) and DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the rights of the United States government to use, modify, reproduce, release, perform, display, or disclose computer software, computer software documentation, and technical data furnished in connection with the Services will be pursuant to the terms of this Agreement. This United States government rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation, or technical data. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
