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GIGYA DEVELOPER LICENSE AGREEMENT
Please scroll down and read the following Developer License Agreement carefully ("Developer Agreement"). By clicking "I Accept" or by attempting to download, or install, or use the GIGYA software and other materials that accompany this Developer Agreement ("GIGYA Materials"), You agree that this Developer Agreement forms a legally binding agreement between You ("You" or "Your") and GIGYA, for and on behalf of itself and its subsidiaries and affiliates (as defined in Section 15 of the German Stock Corporation Act) and You agree to be bound by all of the terms and conditions stated in this Developer Agreement. If You are trying to access or download the GIGYA Materials on behalf of Your employer or as a consultant or agent of a third party (either "Your Company"), You represent and warrant that You have the authority to act on behalf of and bind Your Company to the terms of this Developer Agreement and everywhere in this Developer Agreement that refers to 'You' or 'Your' shall also include Your Company. If You do not agree to these terms, do not click "I Accept", and do not attempt to access or use the GIGYA Materials. 1. LICENSE: GIGYA grants You a non-exclusive, non-transferable, non-sublicensable, revocable, limited use license to copy, reproduce and distribute the application programming interfaces ("API"), documentation, plug-ins, templates, scripts and sample code ("Tools") on a desktop, laptop, tablet, smart phone, or other appropriate computer device that You own or control (any, a "Computer") to create new applications ("Customer Applications"). You agree that the Customer Applications will not: (a) unreasonably impair, degrade or reduce the performance or security of any GIGYA software applications, services or related technology ("Software"); (b) enable the bypassing or circumventing of GIGYA's license restrictions and/or provide users with access to the Software to which such users are not licensed; (c) render or provide, without prior written consent from GIGYA, any information concerning GIGYA software license terms, Software, or any other information related to GIGYA products; or (d) permit mass data extraction from a GIGYA product to a non-GIGYA product, including use, modification, saving or other processing of such data in the non-GIGYA product. In exchange for the right to develop Customer Applications under this Agreement, You covenant not to assert any Intellectual Property Rights in Customer Applications created by You against any GIGYA product, service, or future GIGYA development. 2. INTELLECTUAL PROPERTY: a) GIGYA or its licensors retain all ownership and intellectual property rights in the APIs, Tools and Software. You may not: a) remove or modify any marks or proprietary notices of GIGYA, b) provide or make the APIs, Tools or Software available to any third party, c) assign this Developer Agreement or give or transfer the APIs, Tools or Software or an interest in them to another individual or entity, d) decompile, disassemble or reverse engineer (except to the extent permitted by applicable law) the APIs Tools or Software, (e) create derivative works of or based on the APIs, Tools or Software, (f) use any GIGYA name, trademark or logo, or (g) use the APIs or Tools to modify existing Software or other GIGYA product functionality or to access the Software or other GIGYA products' source code or metadata. b) Subject to GIGYA's underlying rights in any part of the APIs, Tools or Software, You retain all ownership and intellectual property rights in Your Customer Applications. 3. FREE AND OPEN SOURCE COMPONENTS: The GIGYA Materials may include certain third party free or open source components ("FOSS Components"). You may have additional rights in such FOSS Components that are provided by the third party licensors of those components. 4. THIRD PARTY DEPENDENCIES: The GIGYA Materials may require certain third party software dependencies ("Dependencies") for the use or operation of such GIGYA Materials. These dependencies may be identified by GIGYA in Maven POM files, product documentation or by other means. GIGYA does not grant You any rights in or to such Dependencies under this Developer Agreement. You are solely responsible for the acquisition, installation and use of Dependencies. GIGYA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN RESPECT OF DEPENDENCIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, GIGYA DOES NOT WARRANT THAT DEPENDENCIES WILL BE AVAILABLE, ERROR FREE, INTEROPERABLE WITH THE GIGYA MATERIALS, SUITABLE FOR ANY PARTICULAR PURPOSE OR NON-INFRINGING. YOU ASSUME ALL RISKS ASSOCIATED WITH THE USE OF DEPENDENCIES, INCLUDING WITHOUT LIMITATION RISKS RELATING TO QUALITY, AVAILABILITY, PERFORMANCE, DATA LOSS, UTILITY IN A PRODUCTION ENVIRONMENT, AND NON-INFRINGEMENT. IN NO EVENT WILL GIGYA BE LIABLE DIRECTLY OR INDIRECTLY IN RESPECT OF ANY USE OF DEPENDENCIES BY YOU. 5. WARRANTY: a) If You are located outside the US or Canada: AS THE API AND TOOLS ARE PROVIDED TO YOU FREE OF CHARGE, GIGYA DOES NOT GUARANTEE OR WARRANT ANY FEATURES OR QUALITIES OF THE TOOLS OR API OR GIVE ANY UNDERTAKING WITH REGARD TO ANY OTHER QUALITY. NO SUCH WARRANTY OR UNDERTAKING SHALL BE IMPLIED BY YOU FROM ANY DESCRIPTION IN THE API OR TOOLS OR ANY AVAILABLE DOCUMENTATION OR ANY OTHER COMMUNICATION OR ADVERTISEMENT. IN PARTICULAR, GIGYA DOES NOT WARRANT THAT THE SOFTWARE WILL BE AVAILABLE UNINTERRUPTED, ERROR FREE, OR PERMANENTLY AVAILABLE. FOR THE TOOLS AND API ALL WARRANTY CLAIMS ARE SUBJECT TO THE LIMITATION OF LIABILITY STIPULATED IN SECTION 4 BELOW. b) If You are located in the US or Canada: THE API AND TOOLS ARE LICENSED TO YOU "AS IS", WITHOUT ANY WARRANTY, ESCROW, TRAINING, MAINTENANCE, OR SERVICE OBLIGATIONS WHATSOEVER ON THE PART OF GIGYA. GIGYA MAKES NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF SALE OF ANY TYPE WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, GIGYA DOES NOT WARRANT THAT THE SOFTWARE WILL BE AVAILABLE UNINTERRUPTED, ERROR FREE, OR PERMANENTLY AVAILABLE. YOU ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE API AND TOOLS, INCLUDING WITHOUT LIMITATION RISKS RELATING TO QUALITY, AVAILABILITY, PERFORMANCE, DATA LOSS, AND UTILITY IN A PRODUCTION ENVIRONMENT. 6. LIMITATION OF LIABILITY: a) If You are located outside the US or Canada: IRRESPECTIVE OF THE LEGAL REASONS, GIGYA SHALL ONLY BE LIABLE FOR DAMAGES UNDER THIS AGREEMENT IF SUCH DAMAGE (I) CAN BE CLAIMED UNDER THE GERMAN PRODUCT LIABILITY ACT OR (II) IS CAUSED BY INTENTIONAL MISCONDUCT OF GIGYA OR (III) CONSISTS OF PERSONAL INJURY. IN ALL OTHER CASES, NEITHER GIGYA NOR ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS SHALL BE LIABLE FOR ANY KIND OF DAMAGE OR CLAIMS HEREUNDER. b) If You are located in the US or Canada: IN NO EVENT SHALL GIGYA BE LIABLE TO YOU, YOUR COMPANY OR TO ANY THIRD PARTY FOR ANY DAMAGES IN AN AMOUNT IN EXCESS OF $100 ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE TOOLS OR API OR IN CONNECTION WITH GIGYA'S PROVISION OF OR FAILURE TO PROVIDE SERVICES PERTAINING TO THE TOOLS OR API, OR AS A RESULT OF ANY DEFECT IN THE API OR TOOLS. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST GIGYA, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION FOR NEGLIGENCE. YOUR SOLE REMEDY IN THE EVENT OF BREACH OF THIS DEVELOPER AGREEMENT BY GIGYA OR FOR ANY OTHER CLAIM RELATED TO THE API OR TOOLS SHALL BE TERMINATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL GIGYA AND ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. 7. INDEMNITY: You will fully indemnify, hold harmless and defend GIGYA against law suits based on any claim: (a) that any Customer Application created by You infringes or misappropriates any patent, copyright, trademark, trade secrets, or other proprietary rights of a third party, or (b) related to Your alleged violation of the terms of this Developer Agreement. 8. EXPORT: The Tools and API are subject to German, EU and US export control regulations. You confirm that: a) You will not use the Tools or API for, and will not allow the Tools or API to be used for, any purposes prohibited by German, EU and US law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction; b) You are not located in Cuba, Iran, Sudan, Iraq, North Korea, Syria, nor any other country to which the United States has prohibited export or that has been designated by the U.S. Government as a "terrorist supporting" country (any, an "US Embargoed Country"); c) You are not a citizen, national or resident of, and are not under the control of, a US Embargoed Country; d) You will not download or otherwise export or re-export the API or Tools, directly or indirectly, to a US Embargoed Country nor to citizens, nationals or residents of a US Embargoed Country; e) You are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor listed on the United States Department of Commerce Table of Denial Orders or any other U.S. government list of prohibited or restricted parties and f) You will not download or otherwise export or re-export the API or Tools , directly or indirectly, to persons on the above-mentioned lists. 9. SUPPORT: Other than what is made available on the GIGYA Developer’s Guide (GDG) by GIGYA at its sole discretion and by GDG members, GIGYA does not offer support for the API or Tools which are the subject of this Developer Agreement. 10. TERM AND TERMINATION: You may terminate this Developer Agreement by destroying all copies of the API and Tools on Your Computer(s). GIGYA may terminate Your license to use the API and Tools immediately if You fail to comply with any of the terms of this Developer Agreement, or, for GIGYA's convenience by providing you with ten (10) day's written notice of termination (including email). In case of termination or expiration of this Developer Agreement, You must destroy all copies of the API and Tools immediately. In the event Your Company or any of the intellectual property you create using the API, Tools or Software are acquired (by merger, purchase of stock, assets or intellectual property or exclusive license), or You become employed, by a direct competitor of GIGYA, then this Development Agreement and all licenses granted in this Developer Agreement shall immediately terminate upon the date of such acquisition. 11. LAW/VENUE: a) If You are located outside the US or Canada: This Developer Agreement is governed by and construed in accordance with the laws of the Germany. You and GIGYA agree to submit to the exclusive jurisdiction of, and venue in, the courts of Karlsruhe in Germany in any dispute arising out of or relating to this Developer Agreement. b) If You are located in the US or Canada: This Developer Agreement shall be governed by and construed under the Commonwealth of Pennsylvania law without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Developer Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. 12. MISCELLANEOUS: This Developer Agreement is the complete agreement for the API and Tools licensed (including reference to information/documentation contained in a URL). This Developer Agreement supersedes all prior or contemporaneous agreements or representations with regards to the subject matter of this Developer Agreement. If any term of this Developer Agreement is found to be invalid or unenforceable, the surviving provisions shall remain effective. GIGYA's failure to enforce any right or provisions stipulated in this Developer Agreement will not constitute a waiver of such provision, or any other provision of this Developer Agreement.
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