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SOURCE CODE LICENSE AGREEMENT
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IMPORTANT - READ THIS CAREFULLY BEFORE DOWNLOADING, INSTALLING, USING OR
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ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT.
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THIS IS A LEGAL AGREEMENT BETWEEN STREAM.IO, INC. (“STREAM.IO”) AND THE
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BUSINESS ENTITY OR PERSON FOR WHOM YOU (“YOU”) ARE ACTING (“CUSTOMER”) AS THE
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LICENSEE OF THE PROPRIETARY SOFTWARE INTO WHICH THIS AGREEMENT HAS BEEN
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INCLUDED (THE “AGREEMENT”). YOU AGREE THAT YOU ARE THE CUSTOMER, OR YOU ARE AN
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EMPLOYEE OR AGENT OF CUSTOMER AND ARE ENTERING INTO THIS AGREEMENT FOR LICENSE
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OF THE SOFTWARE BY CUSTOMER FOR CUSTOMER’S BUSINESS PURPOSES AS DESCRIBED IN
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AND IN ACCORDANCE WITH THIS AGREEMENT. YOU HEREBY AGREE THAT YOU ENTER INTO
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THIS AGREEMENT ON BEHALF OF CUSTOMER AND THAT YOU HAVE THE AUTHORITY TO BIND
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CUSTOMER TO THIS AGREEMENT.
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STREAM.IO IS WILLING TO LICENSE THE SOFTWARE TO CUSTOMER ONLY ON THE FOLLOWING
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CONDITIONS: (1) YOU ARE A CURRENT CUSTOMER OF STREAM.IO; (2) YOU ARE NOT A
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COMPETITOR OF STREAM.IO; AND (3) THAT YOU ACCEPT ALL THE TERMS IN THIS
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AGREEMENT. BY DOWNLOADING, INSTALLING, CONFIGURING, ACCESSING OR OTHERWISE
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USING THE SOFTWARE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU
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REPRESENT, WARRANT AND ACKNOWLEDGE THAT (A) CUSTOMER IS A CURRENT CUSTOMER OF
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STREAM.IO; (B) CUSTOMER IS NOT A COMPETITOR OF STREAM.IO; AND THAT (C) YOU HAVE
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READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND THAT CUSTOMER AGREES TO BE
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BOUND BY ALL THE TERMS OF THIS AGREEMENT.
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IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT,
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STREAM.IO IS UNWILLING TO LICENSE THE SOFTWARE TO CUSTOMER, AND THEREFORE, DO
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NOT COMPLETE THE DOWNLOAD PROCESS, ACCESS OR OTHERWISE USE THE SOFTWARE, AND
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CUSTOMER SHOULD IMMEDIATELY RETURN THE SOFTWARE AND CEASE ANY USE OF THE
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SOFTWARE.
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1. SOFTWARE. The Stream.io software accompanying this Agreement, may include
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Source Code, Executable Object Code, associated media, printed materials and
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documentation (collectively, the “Software”). The Software also includes any
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updates or upgrades to or new versions of the original Software, if and when
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made available to you by Stream.io. “Source Code” means computer programming
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code in human readable form that is not suitable for machine execution without
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the intervening steps of interpretation or compilation. “Executable Object
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Code" means the computer programming code in any other form than Source Code
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that is not readily perceivable by humans and suitable for machine execution
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without the intervening steps of interpretation or compilation. “Site” means a
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Customer location controlled by Customer. “Authorized User” means any employee
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or contractor of Customer working at the Site, who has signed a written
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confidentiality agreement with Customer or is otherwise bound in writing by
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confidentiality and use obligations at least as restrictive as those imposed
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under this Agreement.
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2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, in
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consideration for the representations, warranties, and covenants made by
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Customer in this Agreement, Stream.io grants to Customer, during the term of
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this Agreement, a personal, non-exclusive, non-transferable, non-sublicensable
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license to:
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a. install and use Software Source Code on password protected computers at a Site,
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restricted to Authorized Users;
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b. create derivative works, improvements (whether or not patentable), extensions
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and other modifications to the Software Source Code (“Modifications”) to build
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unique scalable newsfeeds, activity streams, and in-app messaging via Stream’s
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application program interface (“API”);
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c. compile the Software Source Code to create Executable Object Code versions of
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the Software Source Code and Modifications to build such newsfeeds, activity
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streams, and in-app messaging via the API;
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d. install, execute and use such Executable Object Code versions solely for
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Customer’s internal business use (including development of websites through
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which data generated by Stream services will be streamed (“Apps”));
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e. use and distribute such Executable Object Code as part of Customer’s Apps; and
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f. make electronic copies of the Software and Modifications as required for backup
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or archival purposes.
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3. RESTRICTIONS. Customer is responsible for all activities that occur in
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connection with the Software. Customer will not, and will not attempt to: (a)
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sublicense or transfer the Software or any Source Code related to the Software
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or any of Customer’s rights under this Agreement, except as otherwise provided
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in this Agreement, (b) use the Software Source Code for the benefit of a third
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party or to operate a service; (c) allow any third party to access or use the
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Software Source Code; (d) sublicense or distribute the Software Source Code or
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any Modifications in Source Code or other derivative works based on any part of
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the Software Source Code; (e) use the Software in any manner that competes with
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Stream.io or its business; or (e) otherwise use the Software in any manner that
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exceeds the scope of use permitted in this Agreement. Customer shall use the
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Software in compliance with any accompanying documentation any laws applicable
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to Customer.
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4. OPEN SOURCE. Customer and its Authorized Users shall not use any software or
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software components that are open source in conjunction with the Software
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Source Code or any Modifications in Source Code or in any way that could
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subject the Software to any open source licenses.
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5. CONTRACTORS. Under the rights granted to Customer under this Agreement,
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Customer may permit its employees, contractors, and agencies of Customer to
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become Authorized Users to exercise the rights to the Software granted to
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Customer in accordance with this Agreement solely on behalf of Customer to
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provide services to Customer; provided that Customer shall be liable for the
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acts and omissions of all Authorized Users to the extent any of such acts or
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omissions, if performed by Customer, would constitute a breach of, or otherwise
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give rise to liability to Customer under, this Agreement. Customer shall not
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and shall not permit any Authorized User to use the Software except as
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expressly permitted in this Agreement.
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6. COMPETITIVE PRODUCT DEVELOPMENT. Customer shall not use the Software in any way
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to engage in the development of products or services which could be reasonably
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construed to provide a complete or partial functional or commercial alternative
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to Stream.io’s products or services (a “Competitive Product”). Customer shall
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ensure that there is no direct or indirect use of, or sharing of, Software
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source code, or other information based upon or derived from the Software to
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develop such products or services. Without derogating from the generality of
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the foregoing, development of Competitive Products shall include having direct
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or indirect access to, supervising, consulting or assisting in the development
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of, or producing any specifications, documentation, object code or source code
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for, all or part of a Competitive Product.
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7. LIMITATION ON MODIFICATIONS. Notwithstanding any provision in this Agreement,
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Modifications may only be created and used by Customer as permitted by this
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Agreement and Modification Source Code may not be distributed to third parties.
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Customer will not assert against Stream.io, its affiliates, or their customers,
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direct or indirect, agents and contractors, in any way, any patent rights that
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Customer may obtain relating to any Modifications for Stream.io, its
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affiliates’, or their customers’, direct or indirect, agents’ and contractors’
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manufacture, use, import, offer for sale or sale of any Stream.io products or
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services.
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8. DELIVERY AND ACCEPTANCE. The Software will be delivered electronically pursuant
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to Stream.io standard download procedures. The Software is deemed accepted upon
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delivery.
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9. IMPLEMENTATION AND SUPPORT. Stream.io has no obligation under this Agreement to
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provide any support or consultation concerning the Software.
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10. TERM AND TERMINATION. The term of this Agreement begins when the Software is
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downloaded or accessed and shall continue until terminated. Either party may
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terminate this Agreement upon written notice. This Agreement shall
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automatically terminate if Customer is or becomes a competitor of Stream.io or
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makes or sells any Competitive Products. Upon termination of this Agreement for
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any reason, (a) all rights granted to Customer in this Agreement immediately
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cease to exist, (b) Customer must promptly discontinue all use of the Software
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and return to Stream.io or destroy all copies of the Software in Customer’s
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possession or control. Any continued use of the Software by Customer or attempt
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by Customer to exercise any rights under this Agreement after this Agreement
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has terminated shall be considered copyright infringement and subject Customer
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to applicable remedies for copyright infringement. Sections 2, 5, 6, 8 and 9
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shall survive expiration or termination of this Agreement for any reason.
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11. OWNERSHIP. As between the parties, the Software and all worldwide intellectual
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property rights and proprietary rights relating thereto or embodied therein,
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are the exclusive property of Stream.io and its suppliers. Stream.io and its
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suppliers reserve all rights in and to the Software not expressly granted to
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Customer in this Agreement, and no other licenses or rights are granted by
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implication, estoppel or otherwise.
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12. WARRANTY DISCLAIMER. USE OF THIS SOFTWARE IS ENTIRELY AT YOURS AND CUSTOMER’S
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OWN RISK. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND
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WHATSOEVER. STREAM.IO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY OF ANY
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KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
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LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
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PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS, EFFORTS,
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QUALITY OR QUIET ENJOYMENT. STREAM.IO DOES NOT WARRANT THAT THE SOFTWARE IS
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ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, WILL MEET ANY SPECIFIC NEED
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THAT CUSTOMER HAS, THAT ALL DEFECTS WILL BE CORRECTED OR THAT IT IS
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SUFFICIENTLY DOCUMENTED TO BE USABLE BY CUSTOMER. TO THE EXTENT THAT STREAM.IO
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MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND
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DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
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CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE
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EXPRESS WARRANTIES IN THIS AGREEMENT.
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13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, STREAM.IO’S
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TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE OR
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THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
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SHALL NOT EXCEED $100. IN NO EVENT WILL STREAM.IO BE LIABLE FOR ANY INDIRECT,
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CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OF ANY KIND
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WHATSOEVER, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING
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TO THE SOFTWARE EVEN IF STREAM.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
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DAMAGES. CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON
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ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT STREAM.IO WOULD NOT ENTER INTO
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THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
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14. General. Customer may not assign or transfer this Agreement, by operation of
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law or otherwise, or any of its rights under this Agreement (including the
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license rights granted to Customer) to any third party without Stream.io’s
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prior written consent, which consent will not be unreasonably withheld or
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delayed. Stream.io may assign this Agreement, without consent, including, but
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limited to, affiliate or any successor to all or substantially all its business
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or assets to which this Agreement relates, whether by merger, sale of assets,
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sale of stock, reorganization or otherwise. Any attempted assignment or
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transfer in violation of the foregoing will be null and void. Stream.io shall
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not be liable hereunder by reason of any failure or delay in the performance of
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its obligations hereunder for any cause which is beyond the reasonable control.
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All notices, consents, and approvals under this Agreement must be delivered in
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writing by courier, by electronic mail, or by certified or registered mail,
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(postage prepaid and return receipt requested) to the other party at the
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address set forth in the customer agreement between Stream.io and Customer and
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will be effective upon receipt or when delivery is refused. This Agreement will
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be governed by and interpreted in accordance with the laws of the State of
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Colorado, without reference to its choice of laws rules. The United Nations
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Convention on Contracts for the International Sale of Goods does not apply to
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this Agreement. Any action or proceeding arising from or relating to this
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Agreement shall be brought in a federal or state court in Denver, Colorado, and
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each party irrevocably submits to the jurisdiction and venue of any such court
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in any such action or proceeding. All waivers must be in writing. Any waiver or
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failure to enforce any provision of this Agreement on one occasion will not be
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deemed a waiver of any other provision or of such provision on any other
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occasion. If any provision of this Agreement is unenforceable, such provision
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will be changed and interpreted to accomplish the objectives of such provision
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to the greatest extent possible under applicable law and the remaining
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provisions will continue in full force and effect. Customer shall not violate
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any applicable law, rule or regulation, including those regarding the export of
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technical data. The headings of Sections of this Agreement are for convenience
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and are not to be used in interpreting this Agreement. As used in this
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Agreement, the word “including” means “including but not limited to.” This
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Agreement (including all exhibits and attachments) constitutes the entire
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agreement between the parties regarding the subject hereof and supersedes all
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prior or contemporaneous agreements, understandings and communication, whether
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written or oral. This Agreement may be amended only by a written document
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signed by both parties. The terms of any purchase order or similar document
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submitted by Customer to Stream.io will have no effect.
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