SDK LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY THE TERMS OF THIS LICENSE AGREEMENT
(“AGREEMENT”). BY INSTALLING, ACCESSING AND/OR USING THE SOFTWARE (AS DEFINED
BELOW), YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, OR THE COMPANY YOU
REPRESENT, (“YOU” OR “LICENSEE”) ARE ENTERING INTO A LEGAL AGREEMENT WITH
APPLITOOLS LTD. AND ITS AFFILIATES (“APPLITOOLS”), AND HAVE UNDERSTOOD AND
AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF
THIS AGREEMENT. YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS
OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC)
SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW.
THE SOFTWARE MAY BE USED SOLELY FOR YOUR PERSONAL, NON-COMMERCIAL PURPOSES.
FOR COMMERCIAL PURPOSES PLEASE CONTACT THE REGIONAL APPLITOOLS BUSINESS
REPRESENTATIVE.
1. Definitions. For purposes of this Agreement, the following capitalized
terms shall have the following meaning:
1. “Documentation” means the user’s guides and technical manuals delivered
by Applitools to Licensee.
2. “Feedback” means suggestions, comments or feedback (whether orally or in
writing) with respect to the Software.
3. “Intellectual Property Rights” means all intangible legal rights, titles
and interests evidenced by or embodied in all: (i) inventions (regardless
of patentability and whether or not reduced to practice), improvements
thereto, patents, patent applications, patent disclosures, together with
all reissuances, continuations, continuations in part, revisions,
extensions and reexaminations thereof; (ii) trademarks, service marks,
trade dress, logos, trade names, corporate names, together with
translations, adaptations, derivations and combinations thereof,
including goodwill associated therewith, and applications, registrations,
and renewals in connection therewith; (iii) any work of authorship,
regardless of copyrightable, copyrightable works, copyrights (including
moral rights), and applications, registrations and renewals in connection
therewith; (iv) mask works and applications, registrations and renewals
in connection therewith; (v) trade secrets and Confidential Information;
and (vi) other proprietary rights and any other similar rights, in each
case on a worldwide basis, and copies and tangible embodiments thereof,
in whatever form or medium.
4. “License” means the right to use the Software pursuant to Section 2.1 to
this Agreement.
5. “Software” means Applitools’ software development kit software in object
or source code version, Documentation and any updates and upgrade thereto
(to the extent delivered).
1. License
1. Grant of License. Subject to the terms and conditions of this Agreement,
Applitools grants You, during the Term, a personal, non-exclusive,
non-sublicensable, non-transferable, revocable license to: (i) use the
Software solely for Your own personal (non-commercial) use and (ii) use
and display Applitools’ Marks solely for the purpose of publicizing or
advertising that You are using the Software.
2. Documentation. Applitools may make available Documentation to Licensee
for Licensee to use solely in connection with Licensee’s use of the
Software during the term of this Agreement. Licensee may print or copy
the Documentation as needed for its own purposes provided that all
copyright notices are included therein. The Documentation shall be
considered the Confidential Information of Applitools.
1. Reservation of Rights; Use Restrictions. Other than the rights explicitly
granted in this Agreement, Licensee shall have no other rights, express
or implied, in the Software. Without limiting the generality of the
foregoing, Licensee agrees and undertakes not to: (i) allow any third
party to use the Software in any manner, including but not limited to,
sell, lease, sublicense or distribute the Software, or any part thereof;
(ii) modify, revise, or alter the Software or reverse engineer,
decompile, disassemble or otherwise reduce to human-perceivable form the
Software’s source code; (iii) copy or allow copies of the Software to be
made; (iv) remove, alter or obscure any proprietary notice or
identification, including copyright, trademark, patent or other notices,
contained in or displayed on or via the Software; (v) use the Software to
violate any applicable laws, rules or regulations, or for any unlawful,
harmful, irresponsible, or inappropriate purpose, or in any manner that
breaches this Agreement, and/or (vi) represent that it possesses any
proprietary interest in the Software.
1. Third Party Software. Licensee acknowledges and agrees that any third
party software (“Third Party Software”) that provided with the Software
is provided under the terms of the license attached/linked thereto or,
if no such license is attached, such Third Party Software is provided for
free and on “AS IS” basis. Applitools is not liable for any losses or
damages which may occur resulting from the use of any Third Party
Software. Applitools does not possess any proprietary interest in such
Third Party Software.
1. Open Source Licenses. The Software includes certain open source code
software and materials (as shall be listed in the documentation of the
Software) (“Open Source Software”) that are subject to their respective
open source licenses (“Open Source Licenses”). Such Open Source Licenses
contain a list of conditions with respect to warranty, copyright policy
and other provisions. By executing this Agreement, Licensee undertakes to
strictly comply with the terms and condition of the Open Source Licenses,
as may be amended from time to time. In order to comply with the Open
Source Licenses, Licensee shall read the respective licenses or notices,
such list of Open Source Licenses may be amended from time to time by
Applitools, at its sole discretion. In the event of any inconsistencies
or conflicting provisions between the provisions of the Open Source
Licenses and the provisions of this Agreement, the provisions of the Open
Source Licenses shall prevail. Without derogating from the generality of
the foregoing, it is clarified that any Open Source Software is provided
on an “AS IS” basis, without indemnity or warranty of any kind, whether
express or implied. For clarity, the representations and warranties set
forth in Section 4 hereunder shall not apply to any Open Source Software.
1. Title & Ownership. APPLITOOLS DOES NOT SELL OR TRANSFER TITLE IN THE
SOFTWARE, OR ANY PART THEREOF, TO LICENSEE. The Documentation, Software
(excluding any Open Source Software and Third Party Software therein which
are owned by their respective licensors) and/or any copies thereof,
including without limitation any derivative works made (regardless of
whether such derivative works were made and/or developed pursuant to the
request and/or specifications of Licensee, and irrespective of any support
and/or assistance Applitools may, will or had received from Licensee, or any
third party on its behalf, with respect thereto), as well as any updates or
upgrades thereto, if provided to Applitools pursuant to this Agreement,
shall remain Applitools’ sole and exclusive property. All Intellectual
Property Rights evidenced by or embodied in and/or
attached/connected/related to the Software, or part thereof, are and shall
be owned solely and exclusively by Applitools. Nothing in this Agreement
shall constitute a waiver of Applitools’ Intellectual Property Rights under
any law, or be in any way construed or interpreted as such. It is further
agreed that to the extent Licensee provides Applitools with Feedback,
Licensee acknowledges that any and all rights, including Intellectual
Property Rights in such Feedback shall belong exclusively to Applitools and
Licensee hereby irrevocably and unconditionally transfers and assigns to
Applitools all intellectual property rights in such Feedback and waives any
and all moral rights that Licensee may have in respect thereto. It is
further understood that use of Feedback, if any, may be made by Applitools
at its sole discretion, and that Applitools in no way shall be obliged to
make use of any kind of the Feedback or part thereof.
1. Warranty. Applitools warrants that to its knowledge it has the right to
grant the license under this Agreement. Applitools’ sole liability for any
breach of this warranty or any other warranty under this Agreement shall be,
at Applitools’ sole discretion: (i) to replace or repair the Software or the
applicable portion thereof; or (ii) to terminate this Agreement.
2. Warranty Exclusions. The warranties set forth in Section 4 are contingent
upon Licensee’s proper use of the Software, and shall not apply to damage
caused by abuse, misuse, alteration, neglect or unauthorized repair or
installation, or by the use or attempted use of Software other than that
supplied and supported by Applitools. Applitools will use reasonable
commercial efforts to repair or replace the Software or the applicable
portion thereof, pursuant to the foregoing warranty within thirty (30) days
of being so notified.
1. Warranty Disclaimers. AS BETWEEN LICENSEE AND APPLITOOLS, EXCEPT AS SET IN
SECTION 4, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS
WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION,
REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR
INTENDED OR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THAT THE SOFTWARE
WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS OR WILL ACHIEVE ANY
SPECIFIC RESULTS AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR
USAGE OF TRADE. Applicable law may not allow the exclusion of certain
warranties, so to that extent such exclusions may not apply.
1. High Risk Activities. You acknowledge that the Software is not fault
tolerant and is not designed, manufactured, or intended for use or resale as
on-line control equipment in hazardous or high risk environments and
activities requiring fail-safe performance (such as in the operation of
nuclear facilities, aircraft navigation or communication systems, air
traffic control, direct life support machines and/or devices, or weapons
systems) in which the failure of the Software could lead directly to death,
personal injury, or severe physical or environmental damage, and You agree
not to use or allow the use of the Software or any portion thereof for, or
in connection with, any such environment or activity.
1. Indemnify. You agree that Applitools shall have no liability whatsoever for
any use made of the Software by You or any third party. You hereby agree to
defend, indemnify and hold harmless Applitools and its affiliates and their
respective officers, directors, agents and employees from any and all
claims, damages, liabilities, costs, and expenses (including attorney’s
fees) arising from claims related to Your use of the Software as well as
from Your failure to comply with this Agreement.
1. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL APPLITOOLS AND/OR ITS
AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR
REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT
RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE. APPLITOOLS’S
TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES AND LOSSES THAT
ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT IN ANY
CIRCUMSTANCE EXCEED THE AMOUNT OF 100.00 (ONE HUNDRED) UNITED STATES
DOLLARS. THE FOREGOING LIMITATIONS AND EXCLUSIONS IN THIS SECTION 7 SHALL
APPLY: (I) EVEN IF APPLITOOLS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY
DAMAGES OR LOSSES; (II) EVEN IF ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE BASIS OR THEORY OF LIABILITY.
1. Export Laws. Licensee agrees to comply fully with all U.S., EU, Israeli, and
all applicable export laws and regulations to ensure that neither the
Software nor any technical data related thereto are exported or re-exported
directly or indirectly in violation of, or used for any purposes prohibited
by, such laws and regulations. For clarity, and without derogating from
Section 11 below, in case of any change of any applicable law, policy or
regulation, which might affect Applitools’ business, Applitools will have
the right to terminate this Agreement and the license granted hereunder and
the Licensee shall have no claims regarding such termination.
1. Term and Termination. This Agreement shall continue until terminated as set
forth in this section (the “Term”). You may terminate this Agreement at any
time by removing the Software from Your system and destroying all copies of
the Software and Documentation relating to the Software. Unauthorized
copying of the Software or otherwise failing to comply with this Agreement
will result in automatic immediate termination of this Agreement and will
make available to Applitools legal remedies. Applitools reserves the right
to terminate this Agreement and the License at any time and without notice.
Upon termination of this Agreement, the License will terminate and You: (i)
will cease any and all rights to use the Software, and (ii) will remove the
Software from all hard drives, networks and other storage media and destroy
all copies of the Software in your possession or under your control. The
provisions of Sections 2.3, 2.4, 2.5, 6, 7, 8, 9, 10, 11 and 12 shall
survive the termination, expiration or other ending of this Agreement.
1. Miscellaneous. This Agreement represents the complete agreement concerning
the Software between You and Applitools and supersedes all prior agreements
and representations between You and Applitools. If any provision of this
Agreement is held to be unenforceable for any reason, such provision shall
be reformed only to the extent necessary to make it enforceable. Any waiver
of any provision of this Agreement will be effective only if in writing and
signed by Applitools. This Agreement is personal to You and may not be
assigned or transferred for any reason whatsoever without the consent of
Applitools and any action or conduct in violation of the foregoing shall be
void and without effect. Applitools expressly reserves the right to assign
this Agreement and to delegate any of its obligations hereunder. This
Agreement are governed by and construed under the laws of the State of
Israel, excluding its conflicts of law rules. You expressly agree that the
exclusive jurisdiction for any claim or action arising out of or relating to
this Agreement shall be the courts located in Tel Aviv, Israel, and You
further agree and submit to the exercise of personal jurisdiction of such
courts for the purpose of litigating any such claim or action. In any action
or proceeding to enforce rights under this Agreement, the prevailing party
shall be entitled to recover costs and attorneys’ fees.