Millennial Media SDK License
PLEASE READ THIS CAREFULLY. IF YOU DO NOT AGREE THESE TERMS, YOU ARE NOT AUTHORIZED TO DOWNLOAD OR USE THIS SDK. THIS MOBILE APPLICATION SDK LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN MILLENIAL MEDIA, INC. (“MILLENIAL MEDIA” OR “WE”) AND YOU INDIVIDUALLY IF YOU ARE AGREEING TO IT IN YOUR PERSONAL CAPACITY, OR IF YOU ARE AUTHORIZED TO DOWNLOAD THE SDK ON BEHALF OF YOUR COMPANY OR ORGANIZATION, BETWEEN THE ENTITY FOR WHOSE BENEFIT YOU ACT (“YOU”). MILLENIAL MEDIA OWNS AND OPERATES THE SHARING PLATFORM. BY DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT US AT DEVELOPER@MILLENNIALMEDIA.COM. This Agreement governs your access to, and use of, the object code version of our proprietary software and associated application programming interface for use with mobile applications, as well as any related materials, including installation tools, sample code, source code, software libraries and documentation and any error corrections, updates, or new releases that we elect, in our sole discretion, to make available to you (all such materials, collectively, the “SDK”). License. Subject to the terms and conditions of this Agreement, Millennial Media hereby grants you a non-exclusive, non-transferable, non-sub-licenseable, royalty-free right and license to copy and use the SDK solely for the purpose of performance pursuant to your mobile advertising agreement with Millennial Media, in accordance with the documentation (the “Purpose”). You acknowledge and agree that you have no rights to any upgrades, modifications, enhancements or revisions that Millennial Media may make to the SDK. You agree that we have no obligation to provide any support or engineering assistance of any sort unless we otherwise agree in writing. Restrictions. You may not use the SDK to: (i) design or develop anything other than a mobile application consistent with the Purpose; (ii) make any more copies of the SDK than are reasonably necessary for your authorized use thereof; (iii) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the SDK or any portion thereof; (iv) distribute, publish, sell, transfer, assign, lease, rent, lend, or sublicense either in whole or part the SDK to any third party except as may specifically be permitted in Section 3 herein; (v) redistribute any component of the SDK except as set forth in Section 3 herein, or (vi) remove or otherwise obfuscate any proprietary notices or labels from the SDK. You may not use the SDK except in accordance with applicable laws and regulations, nor may you export the SDK from and outside the United States of America except as permitted under the applicable laws and regulations of the United Sates of America. You may not use the SDK to defraud any third party or to distribute obscene or other unlawful materials or information. End Users. If any constituent file of the SDK is distributed with your application, then you will ensure that any end-user obtaining access to such software application will be subject to an end-user license agreement containing terms at least as protective of Millennial Media and the SDK as the terms set forth in this Agreement. Copyright Notice. You must include all copyright and other proprietary rights notices that accompany the SDK in any copies that you produce. Proprietary Rights. Subject always to our ownership of the SDK, you will be the sole and exclusive owner of any software application developed using the SDK, excluding the SDK and any portions thereof. Feedback. In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Site or the Services, (collectively “Feedback”), you agree we may use the Feedback to modify our products and services and that you will not be due any compensation, including any royalty related to the product or service that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. General Rules of Conduct. You agree not to use the SDK in a manner that: Conducts or promotes any illegal activities; Uploads, distributes, posts, transmits or otherwise makes available, content or information that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, harmful to minors in any way, or racially, ethnically or otherwise objectionable; Uses the SDK in any manner that interferes with the performance or functionality of the APIs or the Millennial Media services; Loads or transmits any form of virus, worm, Trojan horse, or other malicious code; Promotes or advertises any item, good or service that (i) violates any applicable federal, state, or local law or regulation, or (ii) violates the terms of service of any website upon which the content is viewed; Uses the SDK to generate unsolicited email advertisements or spam; or Uses any automatic, electronic or manual process to access, search or harvest information from an individual. Ownership. You understand and acknowledge that the software, code, proprietary methods and systems that make up the SDK are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to the SDK. If you are a U.S. Government end user, any of the components that constitute the SDK and its related documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the SDK and any documentation provided with the SDK with only those rights set forth in this Agreement. Confidential Information. You will safeguard, protect, respect, and maintain as confidential the SDK, the underlying computer code to which you may obtain or receive access, and the functional or technical design, logic, or other internal routines or workings of the SDK, which are considered confidential and proprietary to Millennial Media. Geographical Restrictions. We make no representation that all of the SDK is appropriate or available for use in locations outside the United States or all territories within the United States. If you choose to use the SDK, you do so on your own initiative and are responsible for compliance with local laws. Modification of the SDK. We reserve the right to modify or discontinue the SDK with or without notice to you. We will not be liable to you or any third party should we exercise our right to modify or discontinue the SDK. If you object to any such changes, your sole recourse will be to cease use of the SDK. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SDK. Termination. You acknowledge and agree that we, at our sole discretion, may terminate your use of the SDK without prior notice for any reason at any time. You agree that we shall not be liable to you or any third party for termination of your access to the SDK. In the event of any termination, you will immediately cease use of the SDK. DISCLAIMERS. THE SDK AS WELL AS ALL SOFTWARE, MATERIALS, AND TECHNOLOGY USED TO PROVIDE ANY OF THE FOREGOING, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MILLENIAL MEDIA, OUR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TITLE, QUIET ENJOYMENT, UN-INTERRUPTION, AND/OR SYSTEM INTEGRATION. MILLENIAL MEDIA, OUR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES MAKE NO WARRANTY ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, OR TIMELINESS OF THESDK, OR THAT PROBLEMS WITH THE FOREGOING WILL BE CORRECTED, OR THAT THESDK ARE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, OR THAT THEY WILL BE UNINTERRUPTED OR ERROR FREE. LIMITATIONS OF LIABILITY AND CONTENT. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SDK IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL MILLENNIAL MEDIA, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES OR LIKE DAMAGES, INCLUDING, LOST PROFITS, GOODWILL, LOST OPPORTUNITIES AND INTANGIBLE LOSSES, ARISING IN CONNECTION WITH THE SDK OR THESE TERMS, INCLUDING, FOR EXAMPLE AND CLARITY ONLY, DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITIES, OR BUSINESS INTERRUPTIONS, OR RESULTING FROM THE USE OR ACCESS TO, OR THE INABILITY TO USE OR TO USE THE SDK. THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT MILLENNIAL MEDIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION BY US OF THIS AGREEMENT IS TO DISCONTINUE USING THE SDK. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION OF THESE TERMS WILL NOT EXCEED ONE HUNDRED DOLLARS (U.S. $100.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES. Indemnification. You agree to indemnify, defend and hold harmless Millennial Media, our officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from (i) any Content you submit, post or transmit through the SDK, (ii) your use of the SDK, (iii) your violation of this Agreement, (iv) your violation of any rights of any other person or entity, or (v) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the SDK. Electronic Communications. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the SDK. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption. General Terms. You are responsible for compliance with all applicable laws. This Agreement and the relationship between you and Millennial Media will be governed by the laws of the State of Maryland, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Any legal action, suit or proceeding arising out of or relating to this Agreement, or your use of the SDK must be instituted exclusively in the federal or state courts located in Baltimore, Maryland and in no other jurisdiction. You further consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. This Agreement are personal to you, and you may not transfer, assign or delegate your right and/or duties under this Agreement to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in this Agreement, shown in boldface type, are included only to help make this Agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. YOU AND MILLENNIAL MEDIA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, SERVICES OR MILLENNIAL MEDIA PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.