SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT
1. Introduction
Thank you for your interest in FeelThere, Inc. (“FeelThere”) and our software development kit related to any of our products, software and games (“Products”), and all related FeelThere software, tools, documentation, sample code, together with any upgrades, modifications, additions, or improvements thereof (collectively the “SDK”). This License Agreement (this “Agreement”) governs the use of the SDK by you and/or the entity on whose behalf you are downloading the SDK (“you”). If you are agreeing to be bound by the License Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to the Agreement. If you do not have the requisite authority, you may not accept the Agreement or use the SDK on behalf of your employer or other entity.
2. Acceptance of this Agreement
Your downloading, use, installation, or modification of the SDK constitutes acceptance of the terms of this Agreement. If you do not accept these terms, you may not use, install or modify the SDK. You may not use the SDK and may not accept the License Agreement if you are a person barred from receiving the SDK under the laws of the United States or other countries, including the country in which you are resident or from which you use the SDK.
3. License Grant
a. Subject to the terms of the License Agreement, FeelThere grants you a limited, royalty-free, non-assignable, non-exclusive, and non-sublicensable license to use the SDK solely to develop add-ons for, or create derivative works, of FeelThere Products. Your creations, add-ons to FeelThere Products, or derivative works shall be called your “Items.”
b. You agree that FeelThere owns all legal right, title and interest in and to the SDK and its Products, including any Intellectual Property that subsist in the SDK. “Intellectual Property” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. FeelThere reserves all rights not expressly granted to you.
c. You may not use the SDK for any purpose not expressly permitted by the License Agreement. Except to the extent required by applicable third party licenses, you may not copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK.
d. Use, reproduction and distribution of components of the SDK licensed under an open source software license are governed solely by the terms of that open source software license and not the License Agreement.
e. You agree that the form and nature of the SDK that FeelThere provides may change without prior notice to you and that future versions of the SDK may be incompatible with application add-ons developed on previous versions of the SDK.
f. You agree that FeelThere may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to you or to users generally at FeelThere’s sole discretion, without prior notice to you.
g. You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.
h. Nothing in the License Agreement gives you a right to use any of FeelThere’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
i. To the extent your Items include FeelThere game content, such as gameplay footage, screenshots, music, and other elements of FeelThere Products (“Game Content”), FeelThere grants you a limited, royalty-free, non-assignable, non-exclusive, and non-sublicensable license to use and display the Game Content and to create derivative works based upon Game Content.
j. If you share any of your Items that include FeelThere Game Content or were created using the FeelThere SDK with others, then you must include the following notice:
[Name of the FeelThere Product] © FeelThere, Inc. [The title of your item] was created under FeelThere’s Software Development License Agreement using assets from [Name of the FeelThere Product], and it is not endorsed by or affiliated with FeelThere.
You can put the notice in a README file, or on the web page from where it is downloaded, or anywhere else that makes sense so long as anyone who sees your creation or add-on will easily find this notice.
4. Use of the SDK by You
a. FeelThere agrees that it obtains no right, title or interest from you (or your licensors) under the License Agreement in or to any Items that you develop using the SDK, including any intellectual property rights that subsist in those Items.
b. You agree to use the SDK and write applications only for purposes that are permitted by (a) the License Agreement and (b) 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).
c. You agree that you are solely responsible for (and that FeelThere has no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display, and for the consequences of your actions (including any loss or damage which FeelThere may suffer) by doing so.
d. You agree that you are solely responsible for (and that FeelThere has no responsibility to you or to any third party for) any breach of your obligations under the License Agreement, any applicable third party contract or Terms of Service, or any applicable law or regulation, and for the consequences (including any loss or damage which FeelThere or any third party may suffer) of any such breach.
5. Terminating this License Agreement.
The License Agreement will continue to apply until terminated by either you or FeelThere as set out below.
a. If you want to terminate the License Agreement, you may do so by ceasing your use of the SDK.
b. FeelThere may at any time, terminate the License Agreement with you if: (i) you have breached any provision of the License Agreement; or (ii) FeelThere is required to do so by law; or (iii) FeelThere decides to no longer provide the SDK or certain parts of the SDK to users in the country in which you are resident or from which you use the service, or the provision of the SDK or certain SDK services to you by FeelThere is, in FeelThere’s sole discretion, no longer commercially viable.
c. When the License Agreement comes to an end, all of the legal rights, obligations and liabilities that you and FeelThere have benefited from, been subject to (or which have accrued over time whilst the License Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation.
6. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SDK IS AT YOUR SOLE RISK AND THAT THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM FEELTHERE. YOUR USE OF THE SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. FEELTHERE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT FEELTHERE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT FEELTHERE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
8. Indemnification
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless FeelThere, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing
from (a) your use of the SDK, (b) any Item you develop on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by you with the License Agreement.
9. Changes to the License Agreement
FeelThere may make changes to the License Agreement as it distributes new versions of the SDK. When these changes are made, FeelThere will make a new version of the License Agreement available on the website where the SDK is made available.
10. General Legal Terms
a. The License Agreement constitutes the whole legal agreement between you and FeelThere and governs your use of the SDK (excluding any services which FeelThere may provide to you under a separate written agreement), and completely replaces any prior agreements between you and FeelThere in relation to the SDK or your Items.
b. You agree that if FeelThere does not exercise or enforce any legal right or remedy which is contained in the License Agreement (or which FeelThere has the benefit of under any applicable law), this will not be taken to be a formal waiver of FeelThere’s rights and that those rights or remedies will still be available to FeelThere.
c. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the License Agreement is invalid, then that provision will be removed from the License Agreement without affecting the rest of the License Agreement. The remaining provisions of the License Agreement will continue to be valid and enforceable.
d. You acknowledge that no other person or company shall be third party beneficiaries to the License Agreement.
e. EXPORT RESTRICTIONS. THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE.
f. The rights granted in the License Agreement may not be assigned or transferred by either you or FeelThere without the prior written approval of the other party. Neither you nor FeelThere shall be permitted to delegate their responsibilities or obligations under the License Agreement without the prior written approval of the other party.
g. The License Agreement, and your relationship with FeelThere under the License Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and FeelThere agree to submit to the exclusive jurisdiction of the courts located within the county of Orange, California to resolve any legal matter arising from the License Agreement. Notwithstanding this, you agree that FeelThere shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
