XAPP SDK TERMS OF SERVICE AND LICENSE AGREEMENT
http://xappmedia.com/xapp-sdk/sdk-terms/

LAST UPDATED: June 25, 2015

Please read this XAPP SDK Terms of Service and License Agreement (this “Agreement”) carefully before downloading, installing, accessing or using the SDK (as defined below). Downloading, installing, accessing or using the SDK constitutes your (1) agreement to be bound by this Agreement, (2) affirmation that you are of legal age to enter into this Agreement, and (3) representation that you are not a XAPPmedia Competitor (as defined below).

If you are an employee or other representative of a business or other entity, and you are downloading, installing, accessing or using the SDK in your capacity as such a representative, then you are agreeing to this Agreement on behalf of yourself and such entity, and all references to “you” herein will refer to both you and to such entity, and you represent that you have the legal authority to bind such entity to this Agreement. If you do not have such authority, are not of legal age to enter into this Agreement, are a XAPPmedia Competitor or do not agree to be bound by these terms, please refrain from downloading, installing, accessing or using the SDK.

This Agreement is made between you (both the individual downloading, installing, accessing and/or using the SDK and any single legal entity on behalf of which such individual is acting) (“you” or “your”) and XappMedia, Inc. (“XAPPmedia,” “we,” “us,” and “our”).   This software development kit (together with all Licensed Materials, Test Environment Services, XAPPmedia Proprietary Information incorporated in the Test XAPPs (all terms as defined below) and all related services described below, the “SDK”) is provided by XAPPmedia pursuant to the terms and conditions of this Agreement. The SDK is provided to you solely for the purpose of your development and internal testing of applications that operate with XAPPmedia software, materials and services on the terms and conditions set forth herein. You may contact us via e-mail at support@xappmedia.com to initiate a request to enter into a Master License and Services Agreement (as defined below) with XAPPmedia for any commercial use and/or production use of the SDK. Capitalized terms not otherwise defined elsewhere in this Agreement have the meanings ascribed to them in Section 1.

If you are a XAPPmedia Competitor, you may not download, install access or use the SDK. You hereby represent that as of the time you agree to the terms and conditions of this Agreement and thereafter continuously during the term of this Agreement, that you are not a XAPPmedia Competitor.

We reserve the right, at any time and from time to time and in our sole discretion, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the SDK (or any portion thereof) and/or make available opportunities to some or all users of the SDK. You agree that neither we nor any of our affiliates shall be liable to you or to any other person or entity for any modification, suspension or discontinuance of the SDK or any component or element thereof. We reserve the right, at any time and from time to time and in our sole discretion, to amend or modify the terms and conditions of this Agreement, which amendments or modifications we may provide to you by reasonable means, including, without limitation, by posting an updated version of this Agreement to http://xappmedia.com/xapp-sdk/sdk-terms or to the SDK. Your continued use of the SDK thereafter will constitute your acceptance of any amendments or modifications to this Agreement. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement.

1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

1.1 “APIs” shall mean application programming interfaces.

1.2 “Derivative Work” shall mean a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.

1.3 “Documentation” shall mean any operating instructions, user manuals, help files and other technical information, documentation and materials, in written or electronic form.

1.4 “Incorporated Licensed Materials” shall mean the Licensed Materials incorporated into the Combined Application in accordance with the terms of this Agreement.

1.5 “Licensed Materials” shall mean (i) the XAPP SDK software (in compiled code form only), (ii) any Updates that may be provided hereunder by XAPPmedia to you during the term of this Agreement (in compiled code form only), and (iii) any Documentation related to the foregoing that XAPPmedia delivers to you for use pursuant to this Agreement.

1.6 “Test Credentials” means the XAPPmedia-provided log-in credentials (consisting of a user email and password) for the Test XAPP Service.

1.7 “Test Environment Services” shall mean the services provided by XAPPmedia to you hereunder in connection with your use and testing of the Licensed Materials. Such Test Environment Services shall include the Test Server Service and Test XAPP Service.

1.8 “Test Key” means an alphanumeric sequence that enables your application to interact programmatically with the Test Server.

1.9 “Test Server” means a physical or virtual server instance of the XAPP Ad Server.

1.10 “Test XAPPs” means test advertising, content promotions, user controls, messages, announcements or similar communications that (a) are developed by (i) you in accordance with this Agreement or (ii) XAPPmedia or a third party on behalf of XAPPmedia and made available to you for purposes of internal testing and non-production use; and (b) comply with the Documentation and XAPPmedia’s policies in effect from time to time with respect to the development, content and functionality of such advertising, promotions, messages, announcements or similar communications.

1.11 “XAPPmedia Competitor” means any person or entity that provides voice interactive audio advertising services or voice interactive audio content services to 3rd party apps and/or 3rd party services.

2. XAPPmedia Services.

2.1 Test Environment. XAPPmedia and/or our designees will use commercially reasonable efforts to establish and host a non-production, non-commercial instance of the XAPP Ad Operations and Manager Service and Test Server that will be reasonably made available to you as a hosted software-as-a-service (SaaS) platform via the Internet to enable you to reasonably develop Test XAPPs and internally test and analyze such Test XAPPs (and/or other Test XAPPs that are made available by XAPPmedia and/or its designees) with the Combined Application and Licensed Materials, in each case, subject to and in accordance with the terms and conditions of this Agreement (the “Test XAPP Service”). XAPPmedia will provide you with Test Credentials, which you may use to access and use the Test XAPP Service in accordance with this Agreement. Your Test Credentials are unique and personal to you and may not be shared with or otherwise transferred to any third party. You are responsible for maintaining the confidentiality your Test Credentials and you are fully responsible for all interactions with the Test XAPP Service that occur in connection with your Test Credentials.

2.2 Test Server. The Test Server will deliver Test XAPPs to the Combined Application upon a request from the Combined Application that (i) complies with all requirements and specifications set forth in the Documentation or other instructions provided by XAPPmedia in writing from time to time, and (ii) contains a valid Test Key (the “Test Server Service”). XAPPmedia will provide you with a Test Key for your use in connection with the Test Server Service in accordance with this Agreement. You acknowledge that the Test Server Service and Test XAPP Service are optimized to be used in US-English, and the use of the Test Server Service and Test XAPP Service not in US-English may affect the accuracy of the Test Server Service and Test XAPP Service (including, without limitation, the recognition of spoken words or phrases).

2.3 Updates. XAPPmedia will be under no obligation to support the SDK in any way, nor provide any modification, error corrections, bug fix, new release or other update or improvement to the Licensed Materials (“Updates”). In the event XAPPmedia, in its sole discretion, supplies any Update to you, such Update shall be deemed Licensed Materials and the Proprietary Information of XAPPmedia hereunder and shall be subject to the terms and conditions of this Agreement.

3. Rights in Licensed Materials.

3.1 Grant of Rights. Subject to the terms and conditions of this Agreement, XAPPmedia hereby grants to you a restricted, non-exclusive, personal, nontransferable, nonsublicensable, royalty-free, revocable license and right within the United States, during the term of this Agreement and in accordance with the Documentation provided by XAPPmedia, to:

(a) use the Licensed Materials in combination with your device-based software applications (such device-based software applications excluding Licensed Materials, “Authorized Applications”) for purposes of writing and developing device-based software applications that are (i) a compilation of the Licensed Materials and Authorized Applications, and (ii) designed to (A) operate with the Licensed Materials on XAPPmedia-supported smartphones, tablets, other mobile edge devices and other similar devices and their operating systems and (B) interact with the Test XAPP Service and Test Server Service (such compilation of the Licensed Materials and Authorized Applications in a device-based software application, the “Combined Application”);

(b) use the Combined Application to receive and respond to Test XAPPs delivered from the Test Server following a valid request received by the Test Server issued by the Combined Application (provided that you may only request Test XAPPs with a valid Test Key granted to you pursuant to Section 2); and

(c) access and use the Test XAPP Service to (i) develop Test XAPPs, and (ii) internally test and analyze such Test XAPPs with the Combined Applications (provided that you may only access the Test XAPP Service with valid Test Credentials);

provided, that, with respect to each of subsections (a) through (c) above, each such use, test, analysis and access, as applicable, shall be solely in a non-production and non-commercial capacity and solely for development and internal testing to determine whether you desire to enter into a Master License and Services Agreement. Access to and use of the Licensed Materials and Test Environment Services shall be limited to you and your employees. Except as set forth in this Section 2.1, no other right or license of any kind is granted by XAPPmedia to you hereunder with respect to the Licensed Materials.

3.2 Restrictions.  You shall not, without the prior written consent of XAPPmedia: (a) decompile, disassemble or otherwise reverse engineer the Licensed Materials or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Licensed Materials or any portion thereof; (b) distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer or make available the Licensed Materials, in whole or in part, to any third party; (c) export the Licensed Materials outside the United States; (d) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Licensed Materials; (e) release to third parties the results of benchmark tests or other comparisons of the SDK (or any portion thereof) with other programs; (f) permit the SDK (or any portion thereof) to be used for processing the data of any third party (other than Test XAPPs and third party data being delivered from or processed by the Combined Application in accordance with the license and usage rights and restrictions set forth in this Agreement); (g) use the SDK (or any portion thereof) for commercial use or production purposes or for any fraudulent, deceptive or unlawful purpose; or (h) reproduce, distribute or otherwise use, or permit others to reproduce, distribute or otherwise use, the SDK (or any portion thereof) for any purpose other than in accordance with the terms and conditions of this Agreement. PLEASE NOTE THAT UNAUTHORIZED USE OF THE SDK (OR ANY PORTION THEREOF) MAY SUBJECT YOU TO MONETARY DAMAGES AND OTHER CIVIL AND CRIMINAL PENALTIES.

3.3 XAPP Ads App License.  You may, by agreeing to XAPPmedia’s then-current XAPP Ads App End User License Agreement (the “XAPP Ads App EULA”), obtain a license to use the XAPPmedia XAPP Ads mobile application (the “XAPP Ads App”) to (a) listen to, view and test sample interactive audio and display demonstration advertising for non-production purposes and (b) demonstrate the content and functionality of such demonstration advertising and certain related services to third-party advertisers, advertising agencies, content providers, application owners, publishers, advertising optimizers, artists and other similar partners in the digital audio and display advertising industry, in each case, in accordance with the terms and conditions of the XAPP Ads App EULA (including, without limitation, Section 6 thereof).

3.4 Separate Master License and Services Agreement. The grant of the limited rights and licenses to you for the development and internal testing of Authorized Application(s) operating with the Licensed Materials and Test Environment Services does not obligate XAPPmedia to continue offering any of the Licensed Materials or Test Environment Services for commercial use and/or production use, or grant you a right to obtain a commercial license for any of the Licensed Materials or Test Environment Services, other than in XAPPmedia’s sole discretion and pursuant to a separate software license and services agreement (“Master License and Services Agreement”) that is mutually acceptable to the parties and sets forth the terms and condition under which XAPPmedia will license certain software and other technology to you.

3.5 License to Materials. You hereby grant to XAPPmedia a non-exclusive, worldwide license to use, reproduce, distribute, prepare Derivative Works of, and perform and display all Test XAPPs, all materials therefor delivered by you to the Test Environment Services (“Your Materials”), and all Derivative Works based thereon, for the purposes of providing the Test Environment Services and delivering Test XAPPs to you in accordance with this Agreement and demonstrating Test XAPPs to potential partners and publishers.

4. Usage and Testing Obligations. You acknowledges and agree that you: (a) will access and use the SDK (including any portion thereof), and write and develop software applications, only for purposes that are permitted by, and not in violation of, this Agreement and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries); (b) will ensure that you have obtained all necessary consents, licenses and authorizations for the display and use of the SDK (including any portion thereof) as contemplated by this Agreement; (c) will not engage in any activity with the SDK (including any portion thereof), including the development of an application, that (i) interferes with, disrupts, damages, or accesses in an unauthorized manner the Licensed Materials or Test Environment Services or any servers, networks, systems, products, or other properties or services of XAPPmedia or any third party, (ii) infringes or misappropriates any intellectual property rights of a third party, or (iii) causes the Licensed Materials, in whole or in part, to become subject to the terms and conditions of any open source software license; (d) will not distribute, disclose, market, rent, lease, assign, sublicense or otherwise transfer (or permit others to do the same) the Test Environment Services for any purpose or allow anyone other than you and your employees to access or use the Test XAPP Service in any way; (e) are responsible for any data, content (including, without limitation, all recordings, names, depictions, photographs, music, testimonials and endorsements), materials or resources that you create, transmit or display through the Combined Application, Test XAPPs or otherwise; (f) are responsible for any unauthorized use of the Incorporated Licensed Materials, Test Key and any Test Credentials; and (g) are responsible for procuring, installing and maintaining all telecommunications, hardware, equipment and software at your site as required to access and use the SDK (including any portion thereof) and for paying all charges related thereto.

5. Information Submitted by You; Feedback.

5.1 In connection with this Agreement and your use of the SDK, you will submit certain personal information to XAPPmedia. By downloading, installing, accessing or using the SDK, you consent to the collection and processing of personal information you are requested to provide during the registration and installation process and of personal information you submit to XAPPmedia through or in connection with the SDK. You agree that we may use such personal information to provide the Test Environment Services in accordance with this Agreement, for our internal business purposes (such as data analysis, audits, fraud prevention, developing new products, improving or modifying our services and operating and expanding our business activities) and to contact you, including for marketing purposes. We may share your personal information with our service providers. We may also use and disclose your personal information as we believe necessary or appropriate: (a) under applicable law, including laws outside your country of residence; (b) to comply with legal process; (c) to respond to requests from public and government authorities, including authorities outside your country of residence; (d) to enforce this Agreement; (e) to protect our operations or those of any of our affiliates; (f) to protect our rights, privacy, safety or property, and/or that of our affiliates, you or others; and (g) to allow us to pursue available remedies or limit the damages that we may sustain. You represent and warrant that any information you provide in connection with this Agreement and your use of the SDK is true, accurate and complete, and that you will maintain and update such information as needed, such that the information remains true, accurate and complete.

5.2 You are free to provide suggestions, requests, recommendations and other feedback concerning your use of the SDK (including, without limitation, any errors or difficulties discovered with respect thereto) (the “XAPP Feedback”) via e-mail to support@xappmedia.com. You agree that XAPPmedia may contact you regarding the XAPP Feedback. You agree that all such XAPP Feedback shall be the sole property of XAPPmedia and, XAPPmedia may use such XAPP Feedback at its discretion without your consent.

6. Proprietary Rights. XAPPmedia retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Licensed Materials, Test Environment Services and the XAPPmedia Proprietary Information incorporated in the Test XAPPs (including, without limitation, any embedded functionality) and any portion thereof, including, without limitation, any copy or Derivative Work of the Licensed Materials, Test Environment Services or XAPPmedia Proprietary Information incorporated in the Test XAPPs (including, all “moral rights” and other rights with respect to the attribution of authorship or integrity thereof that you may have under any applicable law or any applicable legal theory) or any portion thereof and any Update thereto, subject only to the limited license and rights expressly granted to you in Section 3.1. You agree to take any action reasonably requested by XAPPmedia to evidence (including, without limitation, the assignment of ownership rights to XAPPmedia), maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with XAPPmedia’s ownership of and rights with respect to the Licensed Materials, Test Environment Services or XAPPmedia Proprietary Information incorporated in the Test XAPPs or any Derivative Work (including, all “moral rights” and other rights with respect to the attribution of authorship or integrity thereof that you may have under any applicable law or any applicable legal theory) or Update thereto, subject only to the limited licenses and rights expressly granted to you in Section 3.1. You shall have only those rights in or to the Licensed Materials, Test Environment Services and XAPPmedia Proprietary Information incorporated in the Test XAPPs and any Derivative Work or Update thereto granted to you pursuant to this Agreement.

7. Proprietary Information.

7.1 Proprietary Information. You acknowledge that, in the course of this Agreement you may obtain confidential or proprietary information of XAPPmedia (“Proprietary Information”). “Proprietary Information” will include, without limitation, (a) the existence of this Agreement, (b) trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs (whether in source code or object code form), ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, software documents, hardware, devices, designs, drawings, unpublished patent applications, data, plans, strategies and forecasts, (c) technical, engineering, manufacturing, product, marketing, servicing, financial, personnel and other information, (d) the Licensed Materials (including all Derivative Works and Updates), the Test Environment Services, the Test Key and all Test Credentials and all confidential information related thereto provided by XAPPmedia to you in connection with this Agreement. The Proprietary Information shall, as between you and XAPPmedia, belong solely to XAPPmedia.

7.2 Use and Disclosure Restrictions. You agree (a) to protect the Proprietary Information from unauthorized dissemination and use; (b) to use the Proprietary Information only for the performance of this Agreement and the exercise of any rights under this Agreement; (c) not to disclose any Proprietary Information, or any part or parts thereof, to any of your employees, agents, contractors or any other individuals except to your employees who are under confidentiality obligations no less restrictive than the requirements of this Section 7; (d) not to disclose or otherwise provide to any third party, without the prior written consent of XAPPmedia or as otherwise set forth in a separate written agreement between the parties hereto entered into after the date hereof, as applicable, any XAPPmedia Proprietary Information, Licensed Materials (including Incorporated Licensed Materials) or any data or other information produced, obtained or created by you in connection with your use of the Licensed Materials or Test Environment Services, including, without limitation, the existence of this Agreement and the existence and possible applications of the Licensed Materials; (e) to undertake whatever action is necessary (or authorize XAPPmedia to do so in your name) to prevent or remedy any breach of your confidentiality obligations herein set forth or any other unauthorized disclosure of any Proprietary Information by your current or former employees or agents; and (f) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Proprietary Information provided to you by XAPPmedia.

7.3 Exclusions.  The foregoing restrictions on disclosure and use shall not apply with respect to any Proprietary Information that: (a) is or becomes publicly known through no act or omission by you; (b) was rightfully known by you without confidential or proprietary restriction before receipt from XAPPmedia, as evidenced by your contemporaneous written records; (c) becomes rightfully known to you without confidential or proprietary restriction from a source other than XAPPmedia and that does not owe a duty of confidentiality with respect to such Proprietary Information; or (d) is independently developed without the use of the Proprietary Information as evidenced by your written records. In addition, you may use or disclose the Proprietary Information to the extent (i) approved in writing by XAPPmedia and (ii) you are legally compelled to disclose such Proprietary Information, provided, however, that prior to any such compelled disclosure, you shall cooperate fully with XAPPmedia in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information. Further, you may disclose the terms and conditions of this Agreement: (A) in confidence, to legal counsel; (B) in confidence, to accountants, banks, and financing sources and their advisors; and (C) in connection with the enforcement of this Agreement or any rights hereunder.

7.4 Equitable Relief. Your agree that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information or any other breach of any provision of this Section 7 will cause irreparable harm and significant injury to XAPPmedia, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that XAPPmedia, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 7 without the necessity of posting any bond or other security. You shall notify us in writing immediately upon becoming aware of any such breach or threatened breach.

8. Warranty Disclaimer. THE SDK (INCLUDING ALL LICENSED MATERIALS AND TEST ENVIRONMENT SERVICES) AND ANY TEST XAPPS PROVIDED BY XAPPMEDIA ARE PROVIDED “AS IS” AND XAPPMEDIA, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SDK (INCLUDING ALL LICENSED MATERIALS AND TEST ENVIRONMENT SERVICES) AND ANY TEST XAPPS PROVIDED BY XAPPMEDIA, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. ANY RELIANCE ON OR USE OF THE SDK (INCLUDING ALL LICENSED MATERIALS AND TEST ENVIRONMENT SERVICES) AND ANY TEST XAPPS PROVIDED BY XAPPMEDIA SHALL BE AT YOUR SOLE RISK. WE SHALL HAVE NO OBLIGATION TO FURNISH ANY MAINTENANCE AND/OR SUPPORT SERVICES WITH RESPECT TO THE SDK. Applicable law may not allow for limitations of certain implied warranties; solely to the extent that such law applies to you, some or all of the above limitations or disclaimers may not apply to you, and you may have additional rights.

9. Limitation of Liability. NOTWITHSTANDING anything in this Agreement to the contrary or ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (a) TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL XAPPMEDIA, OUR AFFILIATES OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY DAMAGES OR OTHER LOSSES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, AND (b) XAPPMEDIA’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), IF ANY, SHALL NOT EXCEED ONE HUNDRED DOLLARS (US$100).

10. Indemnification.  You will defend, indemnify and hold harmless XAPPmedia, its affiliates and its and their respective directors, officers, employees, agents, representatives, licensors and service providers (collectively, “XAPP Indemnified Parties”) from and against loss, liability, damage, cost, fees, fines and other expenses (including reasonable attorneys’ fees) in connection with claims, actions, demands, suits, or proceedings made or brought against any XAPP Indemnified Party (a) alleging that Your Materials or any Authorized Application infringes or misappropriates any third party intellectual property right; or (b) arising from or related to your violation of (i) this Agreement or any other XAPPmedia terms, conditions or policies, or (ii) any rights of any third party or any applicable laws or regulations.

11. Term and Termination.

11.1 Term.  The term of this Agreement shall commence on the earliest of the date that you first download, install, access or use the SDK and, unless terminated in accordance with Section 11.2, shall continue in full force and effect thereafter.

11.2 Termination. This Agreement may be terminated by (a) XAPPmedia at any time and for any reason upon written notice to you, and (b) you at any time and for any reason upon at least thirty (30) days’ written notice to XAPPmedia.

11.3 Effect of Termination. Upon the expiration or termination of this Agreement, the rights and licenses granted to you hereunder (including, without limitation, all rights and licenses set forth in Sections 2 and 3 and all other rights to use and access the SDK) shall terminate. Within ten (10) days after any termination or expiration of this Agreement, unless otherwise set forth in a Master License and Services Agreement, you shall at your cost securely erase, delete or destroy all Proprietary Information (including, without limitation, all copies and extracts of the foregoing (provided, however, you shall be permitted to retain a reasonable number of archival copies of such Proprietary Information on your backup servers and backup media subject to your continued compliance with all applicable confidentiality and non-disclosure terms and conditions set forth in this Agreement)), but excluding any Authorized Applications to the extent that they do not contain any Licensed Materials or Proprietary Information. The provisions of Sections 1, 3.2, 3.4, 4 through 10, 11.3, and 12 shall survive the expiration or any termination of this Agreement. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other party for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.

12. General Provisions.

12.1 Restricted Rights. If you are an agency or instrumentality of the United States Government, the Licensed Materials are “commercial computer software” and “commercial computer software documentation,” and, pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use reproduction and disclosure of the Licensed Materials are governed by the terms of this Agreement.

12.2 Export. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Licensed Materials, Combined Application and Test Environment Services. Without limiting the generality of the foregoing, you shall not make the Licensed Materials, Combined Applications or Test Environment Services available to any person or entity that: (a) is located in a country that is subject to a U.S. government embargo; (b) is listed on any U.S. government list of prohibited or restricted parties; or (c) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.

12.3 Governing Law; Dispute Resolution. You hereby agree that this Agreement (and any claim or dispute arising in connection with this Agreement or your use of the SDK) is governed by and shall be construed in accordance with the laws of the Commonwealth of Virginia, U.S.A. (but expressly excluding the Uniform Computer Information Transactions Act as enacted in Virginia), without regard to its principles of conflicts of law, and you consent to the exclusive jurisdiction of the federal and state courts located in Fairfax County, Virginia, U.S.A., and waive any jurisdictional, venue or inconvenient forum objections thereto. If any legal action (Including, without limitation, an action for arbitration or injunctive relief) is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.

12.4 Information or Complaints. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the SDK, please feel free to contact us via e-mail at support@xappmedia.com. E-mail communications are not necessarily secure, so please do not include credit card information or other sensitive information in any e-mail to us. You may also contact us by phone at 1-855-XAPP-Ads or by writing to us at 1726 M St, NW Ste 910, Washington, DC 20036. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

12.5 Intended Audience. The SDK is made available from the United States, and the SDK is not intended to subject us to the laws or jurisdiction of any state, country or territory other than those of the United States. Unless otherwise specified, content and materials made available through the SDK are presented solely for the purpose of providing and promoting services and products available in the United States. We make no, and hereby disclaim any, representations or warranties that the SDK, in whole or in part, or any products, services, content or materials made available through the SDK are appropriate or available for use in other locations. Those who choose to access the SDK from other locations do so on their own initiative and at their own risk and are responsible for compliance with local laws, rules and regulations, if and to the extent local laws, rules or regulations are applicable. We may limit the SDK’s availability, in whole or in part, to any person(s), geographic area(s) or jurisdiction(s) we choose, at any time and in our sole discretion. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

12.6 Miscellaneous.  If any provision of this Agreement shall be deemed to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us. You may not assign, transfer (whether by change in control, operation of law or otherwise) or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This Agreement, together with all agreements and statements referred to herein and incorporated herein by reference, is the entire agreement between you and us relating to the subject matter hereof and, except as otherwise provided herein, supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Notices to you may be made by posting a notice (or a link to a notice) to the SDK, by email, or by regular mail, at our discretion. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Nothing in this Agreement, express or implied, is intended to or shall confer on any person (other than the parties and their respective successors or permitted assigns) any rights, remedies, obligations or liabilities.

This Agreement © 2015 XappMedia, Inc. All rights reserved.
