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