Click-Wrap Developer Agreement

Click-wrap Developer Agreement

PLEASE READ CAREFULLY THE FOLLOWING DEVELOPER AGREEMENT! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.

Please contact us at partners@thingpark.com for any queries.

“You” or “Your” means the person or company who is being licensed to use the Licensor software in association with the Usage Agreement (“Usage Agreement”). “We”, “Our” and “Us” means Actility.

NOW, THEREFORE, THIS AGREEMENT WITNESSETH that, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows:

1. DEFINITIONS

1.1. Definitions. Capitalized terms in this Agreement will have the following meanings:

Agreement” means this Software Licence Agreement between You and Us, including its Annex and any on line agreed Order Form;

Feedback” means suggestions, comments, ideas, and all other types of information, including without limitation, source code based on SDK, which (a) is given or communicated directly or indirectly by You to Us or our agents; and (b) relates to the SDK and/or the Platform and/or their component;

Licensed Software” means certain commercial software products being provided to You under this Agreement, including executable program modules thereof, as well as related documentation and computer readable media;

Platform” means the ThingPark Developer Platform, API’s and Partner Zone accessible in SaaS mode enabling You to access and download the SDK, and to access and use development environments, protocols and API’s to integrate and test the compatibility and interoperability of your products with the ThingPark product suite;

SDK” means the documentation, tools and sample software that You may download on the Platform to help integrate and test interoperability of products and services compatible with the ThingPark product suite;

Other capitalized terms have the meanings defined in the Usage Agreement.

2. SOFTWARE LICENCE, OTHER OPTIONAL RIGHTS & RESTRICTIONS

2.1 Software License and other Rights. In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a perpetual, worldwide, non-exclusive, non-transferable, non-sub-licensable license to use the SDK and to access and use, on a confidential, password-restricted basis, in SaaS mode, the Actility Platform solely for the purpose of testing its devices, applications and/or services. The detailed terms and conditions of license are set forth in Exhibit A End User License Agreement.

2.2 Restrictions. Without limiting the generality of the foregoing, You will use the Licensed Software only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:

(a)       make, or allow anyone else to make, a copy of the software or documentation included in the SDK (except one copy of the SDK that may be made available for archival purposes), reproduce, upload, post, transmit, disseminate or distribute in any way any material from us available on the Platform;

(b)      access or attempt to access our systems, programs or data that are not made available for public use;

(c)      permit any third party to use the Platform and/or the SDK without our written consent;

(d)      transfer any rights granted under this Agreement;

(e)      work around any of the technical limitations of the Platform and/or the SDK or decompile, disassemble or otherwise reverse engineer the Platform and/or the SDK or correct any errors;

(f)       perform or attempt to perform any actions that would interfere with the proper working of the Platform, prevent access to or use of the Platform by other licensees or impose an unreasonable or disproportionately large load on our infrastructure and systems.

2.3 Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions.

2.5   Comments and Feedback

Any Feedback provided by You to Us are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Feedback as we deem appropriate, for any and all commercial and non-commercial purposes, in our sole discretion.

3. OUR RESPONSIBILITIES

3.1 We shall use commercially reasonable efforts to make the Platform generally available to You.

3.2. We will not be responsible or liable for any failure to meet the foregoing responsibilities caused, in whole or in part, by the performance, adequacy, accuracy, concurrency or other matters related to your systems. 

4 OWNERSHIP AND INTELLECTUAL PROPERTY

Copyright, trademark and other intellectual property rights protect the Platform and the SDK. Except as expressly provided in this Agreement, We represent and warrant that We and our licensors exclusively own all rights, titles and interests in and to the Platform and the SDK including all associated intellectual property rights. You shall not remove, alter or obscure any copyright, trademarks, service marks or other proprietary rights notices incorporated in or accompanying the Platform and/or the SDK.  Any third party licenses related to Our products are licensed solely for use with such products.  Certain of our products supplied under this Agreement may include open source or third party programs that are subject to the license terms and notifications of such open source or third party license.  Any open source or third party programs incorporated in Our products are not subject to Section 5 (Indemnity). 

5.  INDEMNITY

5.1 You shall defend, indemnify, and hold Us harmless from and against any and all claims, damages, losses, court decisions and expenses (including attorneys’ fees) (hereafter together a “Claim”) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against Us arising out of or in connection with (i) use of the Platform and/or the SDK by You in violation of any applicable laws, rules or regulations (ii) use of the Platform and/or the SDK by You in breach or alleged breach of this Agreement.

5.2 We shall defend, indemnify and hold You harmless against any Claim brought against You by a third party contending that Your use of the Platform and/or the SDK infringes any third party’s intellectual property right.

5.3 In the event that the Platform and/or the SDK or any part thereof are likely to become in our sole opinion or do become the subject of an infringement related Claim and We cannot, at Our option and expense, procure for You the right to continue using the Platform and/or the SDK or any part thereof, or modify the Platform and/or the SDK, or any part thereof, to make them non-infringing, then We may automatically terminate this Agreement and must reimburse You for the fees paid and not used pursuant to an Order Form, on a prorated basis.

5.4 We shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Platform and/or the SDK are the basis of the Claims; (ii) the use or combination of the Platform and/or the SDK or any part thereof with software, hardware, or other materials not developed by Us if the Platform and/or the SDK or use thereof would not infringe without such combination, (iii) modification of the Platform and/or the SDK by a party other than Us, if the use of unmodified Platform and/or unmodified SDK would not constitute infringement. The foregoing states Our entire liability and Licensee’s exclusive remedy for intellectual property rights infringement.

5.5 Any indemnification obligations set forth in this Agreement shall be subject to the following conditions: (i) the indemnified party shall promptly notify the indemnifying party in writing of learning of any Claim for which indemnification is sought; (ii) the indemnifying party shall have sole control of the defense and of any negotiations for the settlement of such Claim, provided that the indemnified party shall have the right to participate in such defense or settlement with counsel at its selection and at its sole expense, but You  shall not settle any Claim without, in each instance, Our prior written consent; and (iii) the indemnified party shall reasonably cooperate notably by providing any information and assistance reasonably required, with the defense, at the indemnifying party's expense.

6.     CONFIDENTIAL INFORMATION

6.1 Unless expressly authorized in writing by the other Party, neither Party shall disclose to any third party any non-public information or materials (including this Agreement and any Order Form) provided by the other Party under this Agreement and reasonably understood to be confidential either because it was identified as “Confidential” or “Proprietary”, it has commercial value, or because it is not generally known in the relevant trade or industry (“Confidential Information”).

6.2 The Parties shall not use such Confidential Information in any manner other than to perform their obligations under this Agreement. The foregoing restrictions do not apply to any information that (i) is in or becomes available through the public domain without any violation of an obligation of confidentiality by one of the Parties, (ii) is already lawfully in the receiving party’s possession, (iii) was known to the receiving party prior to the date of disclosure, (iv) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, or (v) Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing that the receiving party provides disclosing party timely notice of such court order or subpoena (unless forbidden).

6.3 The confidentiality obligations set forth in this Section are effective during the Term of this Agreement and shall survive for three (3) years after the termination or expiration of this Agreement.

7 TERM AND EFFECT OF TERMINATION 

7.1 This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for the duration of the license granted (the “Term”), unless terminated earlier in accordance with this Section.

7.2 If You breach any of its obligations under this Agreement, We will send You a formal notice to remedy the failure(s) without delay. 

7.3 Upon termination or expiration of this Agreement, You shall immediately discontinue all access to and use of the Platform and of the SDK. We shall not be liable for any damages resulting from a termination of this Agreement as provided for herein.

7.4 Termination in accordance with this Section is without prejudice of any other remedies available to the Parties.

8 LIMITATION OF LIABILITY

8.1 Except in the event of gross negligence or willful misconduct, in no event shall We be liable for any lost profits, loss of data, loss of revenue, loss of savings or any other economic loss or for any indirect damages arising out of, in connection with or relating to this Agreement, including without limitation the use of, inability to use, or unavailability of the Platform.

8.2  Unless otherwise stated in an Order Form, Our total liability for any claim arising out or in connection with this Agreement will not exceed the lesser of (i) ten thousand (10,000) Euros or (ii) the total amount paid by You to Us during the twelve (12) months preceding the event that gave rise to liability. The Parties acknowledge that these limitations are a fundamental element of the bases of the bargain of the Parties.           

9 ASSIGNMENT

You may not assign this Agreement or any portion thereof, to any third party unless We expressly consent to such assignment in writing. We will have the right to assign this Agreement and/or any portion thereof as We may deem appropriate.  For the purposes of this Agreement, a merger, consolidation, or other corporate reorganization, or a transfer or sale of a controlling interest in a party’s stock, or of all or substantially all of its assets shall be deemed to be an assignment.  This Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, and permitted assigns

10 GENERAL

10.1 Consents. Any consent required under this Agreement will not be unreasonably withheld.

10.2 Captions. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.

10.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties, and no amendment to the terms of this Agreement will be effective unless in writing and signed by both parties hereto. The Agreement supersedes all communications, whether written or oral concerning the purpose of the Agreement. You represent and warrant that the individual accepting the Agreement by the click-through has authority and power to accept this Agreement on behalf of You.

10.4 Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.

10.5 Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.

10.6 Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement. This Agreement is not exclusive and nothing contained in this Agreement shall be deemed to restrict Our ability to directly or indirectly acquire, license, develop, produce, distribute, market or promote products and services competitive with Your business

10.7 Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.

10.8 Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.

10.9 Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission (the “Fax”), with confirmed answer back, or electronic mail, with confirmation of receipt, to Us or You at the respective addresses we provide to each other or to such other address as We or You may from time to time specify by notice to the other given as provided in this paragraph. In Our case

Our address is: Actility 65 rue de la Victoire 75009 Paris France

In your case, your address is

A 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.

11 APPLICABLE LAW AND JURISDICTION

This Agreement is governed by and construed in accordance with French law, without regard to its conflicts of law provisions. In case of dispute regarding the interpretation or performance of this Agreement that could not be amicably settled by the Parties in accordance with a mutually agreed conciliation procedure, the Paris commercial court shall have exclusive jurisdiction.

12 REVISIONS TO THIS AGREEMENT We may at any time revise the terms of this Agreement by updating these terms and by providing notice to you of that change.

EXHIBIT A

IMPORTANT – READ BEFORE OPERATING OR INSTALLING OUR SOFTWARE

END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING WE PRODUCT, INSTALLING OR ACCESSING THE SOFTWARE, OR DOWNLOADING ANY SOFTWARE UPDATES. BY USING OUR PRODUCT, INSTALLING OR ACCESSING THE SOFTWARE OR DOWNLOADING SOFTWARE UPDATES, FOR OUR PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE OUR PRODUCT, INSTALL OR ACCESS THE SOFTWARE, OR DOWNLOAD THE SOFTWARE UPDATES. INSTEAD, PLEASE CONTACT OUR CUSTOMER SERVICE DEPARTMENT.

1. DEFINITIONS. The following terms are defined as follows: (a) ”Documentation” means any user guides, data sheets, manuals, specifications, or other written description of the Software provided by Us; (b) “We” means, collectively, Actility S.A., its directors, officers, employees, representatives, agents, licensors, and affiliated entities; (c) “Software” means, collectively, (i) the software provided by Us, (ii) the software pre-installed on any Our  product, and (iii) any Documentation; and (d) “You” means you, an individual, if you are accessing the Software on your behalf, or if you are accessing the Software on behalf of your employer or a third party, “You” means the legal entity of the employer or third party as applicable.

2. ACCEPTANCE. You accept the terms of this Agreement either by: (a) clicking “I Accept” when offered by Us; or (b) using Our product, installing or accessing the Software or downloading Software updates. You acknowledge and agree that You have read and understood this Agreement, have had an opportunity to discuss this Agreement with Your legal and other advisors, and agree to be bound by the terms and conditions of this Agreement.

3. LICENSE. The Software is licensed, and is not sold. Subject to the terms of this Agreement, You are granted a limited, non-transferable, non-exclusive license that permits you to use the Software with Our product for internal business or personal use. This License does not grant to you any rights to re-license or sublicense or otherwise resell or re-distribute the Software. This License does not grant to you any rights to obtain future Software updates (e.g., upgrades, fixes, etc.). If future Software updates are obtained by you, whether through a version release, Ourtechnical support, or another authorized method, such Software updates are subject to the terms of this Agreement. If applicable, any previous version of the Software must be destroyed or returned to Us within 90 days of receipt of the Software updates. A Usage Policy (“UP”) applies to your use of Our Software to prevent fraud and abuse of Our product. We retain the rights to charge You an additional License Fee in the case You consistently use the product with Our ThingPark Platform above the Usage Threshold of 25,000 transactions per day.

4. RESTRICTIONS. This Agreement does not authorize You to: (a) sell, lease, copy, assign, license, sublicense, translate, distribute, or otherwise transfer, in whole or in part, the Software; (b) modify, distribute, copy, reproduce, or publish, in whole or in part, the Documentation; (c) use the Software on a timesharing basis to operate a service bureau facility or providing hosting of the Software for the benefit of third parties; (d) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the Software, except as, and then only to the extent, required by applicable law or an applicable open source license; (e) modify or create derivative works of the Software; or (f) create, develop, license, install, use or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software. You acknowledge and agree that the Software and Documentation may be subject to export or import regulations. You agree to strictly comply with all such regulations and acknowledge that You are responsible for obtaining any applicable licenses to export, re-export or import the Software and Documentation.

5. OWNERSHIP; CONFIDENTIALITY. You agree that the Software contains trade secret information, copyrights, trademarks, and other intellectual property rights that are owned by Us or its licensors. We retain all right, title and interest in and to the Software. All rights not expressly granted herein are reserved. You acknowledge and agree that the Software was developed at considerable time and expense by Us and is confidential to and a trade secret of Us. You agree to maintain the Software in strict confidence and not disclose the Software or provide access thereto to any other third party.

6. THIRD PARTY SOFTWARE. The Software may contain software from sources other than Actility SA, including without limitation, third party proprietary software and free and open source software. To the extent the Software includes free and open source software, it is subject to the applicable free and open source software license. We make available information related to the free and open source software upon written request.

7. DISCLAIMER OF WARRANTY. TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, OURSOFTWARE IS PROVIDED "AS IS" AND ANY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE ARE DISCLAIMED.

8. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, WE ARENOT LIABLE TO YOU FOR ANY INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE AND BUSINESS INTERRUPTION, ARISING OUT OF THE SOFTWARE, REGARDLESS OF WHETHER SUCH PERSON OR ENTITY SHALL BE ADVISED OR HAVE REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IF WE IS EVER DEEMED LIABLE TO YOU, OURAGGREGATE LIABILITY IS LIMITED TO THE NET AMOUNT PAID BY YOU FOR WE PRODUCT.

9. TERMINATION. We may, upon written notice to you, immediately terminate this Agreement if you breach the terms set forth in this Agreement.

10. GENERAL. This Agreement: (a) contains the complete and exclusive agreement regarding its subject matter, (b) supersedes all prior or contemporaneous written or oral agreements, representations, promises, and understandings related thereto (except those previously referenced third party license agreements), (c) may be modified, supplemented or amended by Us with or without notice (which modification, supplement or amendment may be made available with Software updates or future purchases of  Our products), (d) is between sophisticated parties, and so the rule of construing ambiguities against the drafter will not apply, (e) will be governed by the laws of France, without regard to its choice of law provisions, and (f) is binding upon the parties and their successors, will not benefit or create any right or cause of action for any other person or entity other than the parties, except Our  third party licensors. No waiver of this Agreement is effective by Us unless in writing signed by a duly authorized representative. If any provision of this Agreement is held to be invalid, it shall be interpreted so as to best advance the spirit of this Agreement and Our intent. All disputes arising from this Agreement shall be heard in the exclusive jurisdiction of the Commercial Court of Paris (“Tribunal de Commerce de Paris”) and you agree to submit to the personal jurisdiction of such court. You acknowledge that You are age thirteen or older, and by accepting this Agreement, You agree that You are fully authorized, able and competent to enter into this Agreement.