Therm-App Software Development Kit License Agreement

Transcription

1 Therm-App Software Development Kit License Agreement 1. Introduction 1.1 Opgal is providing you with the Therm-App Software Development Kit intended for Android application developers (referred to in this License Agreement as the "SDK" and specifically including certain software and any associated documentation and other materials made available by Opgal, owned by Opgal or its licensors). 1.2 The SDK is licensed to you subject to the terms of this License Agreement. This License Agreement forms a legally binding contract between you and Opgal in relation to your use of the SDK. 1.3 "Therm-App " means the thermal imaging device for Android smartphones, developed by Opgal. 1.4 "Opgal" means Opgal Optronic Industries Ltd., an Israeli company having its principal place of business at Industrial Area, Karmiel 20101, Israel. 2. Accepting this License Agreement 2.1 In order to use the SDK, you must first agree to this License Agreement. You may not use the SDK if you do not accept this License Agreement. 2.2 Opgal may provide you the SDK online, by or any other way. By using the SDK, you automatically agree to the terms of this License Agreement. 2.3 If you are agreeing to be bound by this 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 this License Agreement. If you do not have the requisite authority, you may not accept the License Agreement or use the SDK on behalf of your employer or other entity. 3. SDK License from Opgal 3.1 Subject to the terms of this License Agreement, Opgal grants you a limited, worldwide, non-assignable and non-exclusive license to use the SDK solely for the purpose of developing and testing applications for the Therm-App to be executed in the Android environment. The license is granted to you free of charge but subject to paragraph 5.1 below. 3.2 You agree that Opgal or third parties own all legal right, title and interest in and to the SDK, including any Intellectual Property Rights that subsist in the SDK. "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. Opgal reserves all rights not expressly granted to you.

2 You agree that the applications you develop using the SDK will comply with the Google Play Store requirements, including requirements around the acceptability of content, privacy and security. 3.4 The table below lists open source software included in the SDK and web sites containing licenses, under which such software is made available to the public. Notwithstanding anything to the contrary, nothing in this License Agreement will limit your rights under, or grant you rights that supersede, the terms of such licenses to the extent they apply to such open source software. Software LibUSB library License Agreement Location You agree that the form and nature of the SDK that Opgal provides may change without your consent and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK. You agree that Opgal may stop (permanently or temporarily) supporting the SDK (or any features within the SDK) to you or to users generally at Opgal's sole discretion. 3.6 You agree to include the following notice within your application that is reasonably calculated to make any person that uses, views, accesses, or otherwise interacts with your application aware that your application uses the SDK: Contains functionality provided by the Therm-App SDK. Copyright 2014, Opgal Optronic Industries Ltd. All rights reserved. 3.7 Nothing in this License Agreement gives you a right to use any of Opgal's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features, except as set forth in paragraph 3.6 above. 3.8 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. 4. Use of the SDK by You 4.1 Opgal agrees that it obtains no right, title or interest from you (or your licensors) under this License Agreement in or to any applications that you develop using the SDK. 4.2 You agree to use the SDK and write applications only for purposes that are permitted by (a) this 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 any relevant countries).

3 You will not, and will have no right to decompile or otherwise reverse engineer any part of the SDK that is not provided in source code form, or otherwise derive or attempt to derive the source code of, or any processes, techniques, methods, specifications, protocols, algorithms, interfaces, data structures, or other information embodied or used in such SDK software, unless and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or according to open source licenses listed above. You may modify the LibUSB library for your own use and do reverse engineering for debugging such modifications. 4.4 You agree that if you use the SDK to develop applications for general public users, you will protect the privacy and legal rights of those users. If the users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application, and you must provide legally adequate privacy notice and protection for those users. If your application stores personal or sensitive information provided by users, it must do so securely. You must make the users aware that the application contains an Activation Mechanism (as defined in paragraph 5.1 below). If the user provides your application with Google Account information, your application may only use that information to access the user's Google Account when, and for the limited purposes for which, the user has given you permission to do so. 4.5 You agree that you will not engage in any activity with the SDK, including the development or distribution of an application that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of Opgal or any third party. 4.6 You agree that you are solely responsible for (and that Opgal has no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display through the Google Play, or any Android device, and for the consequences of your actions (including any loss or damage which Opgal may suffer) by doing so. 4.7 You agree that you are solely responsible for (and that Opgal has no responsibility to you or to any third party for) any breach of your obligations under this 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 Opgal or any third party may suffer) of any such breach. 5. Transaction Fees 5.1 If you choose to commercialize an application developed by you based on the SDK, Opgal reserves the right to charge you at a rate to be further determined by Opgal (the "Transaction Fee"). In any event, the Transaction Fee shall not exceed 10% of such application purchase price and in-app purchases. If you are a corporate or government entity and develop an application based on the SDK for internal use by your corporation or country, respectively, Opgal and you shall agree on the

4 - 4 - commercial terms by which this application may be used based on transaction fees or annual license fees, on a case by case basis. 6. Privacy and Information 6.1 The SDK contains an activation mechanism allowing Opgal to track each user activating the Therm-App for the first time, to collect data on Therm-App users and to enforce activation policy on devices and applications (the "Activation Mechanism"). You agree to use the SDK in accordance with its documentation, and acknowledge that by doing so, you are allowing Opgal to run the Activation Mechanism and to monitor each activation of device/application. 6.2 The data collected is examined in the aggregate and is maintained in accordance with Opgal's Privacy Policy. 7. Term and Termination 7.1 This License Agreement will continue to apply until terminated by either you or Opgal as set out below. 7.2 If you want to terminate this License Agreement, you may do so by ceasing your use of the SDK. The terms and conditions of this License Agreement shall continue to apply to you with respect to SDK based applications you completed developing. 7.3 Opgal may at any time, terminate this License Agreement with you if: (i) you have breached any provision of this License Agreement; or (ii) Opgal is required to do so by law; or (iii) Opgal decides to no longer provide or support the SDK (no less than 120 days following Opgal's notice on such decision. Such notice to be published on the Therm-App website); or (iv) you do not accept any change made to this License Agreement by Opgal in accordance with the provisions of paragraph 11, including any change in Opgal's Transaction Fee policy detailed in paragraph 5 above. 7.4 When this License Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Opgal have benefited from, been subject to (or which have accrued over time whilst this License Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 12.7 shall continue to apply to such rights, obligations and liabilities indefinitely. 8. DISCLAIMER OF WARRANTIES 8.1 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 OPGAL. 8.2 YOUR USE OF THE SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR

5 - 5 - 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. 8.3 OPGAL 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. 9. LIMITATION OF LIABILITY 9.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT OPGAL, 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 OPGAL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. 10. Indemnification 10.1 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Opgal, 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 application 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 this License Agreement. 11. Changes to the License Agreement 11.1 Opgal may make changes to the License Agreement as it distributes new or updated versions of the SDK, updates its Transaction Fee policy, or for any other reason in Opgal's sole discretion. When these changes are made, Opgal will make a new version of the License Agreement available on the website where the SDK is made available. If you do not agree to the changed terms you may not use the new or updated versions of the SDK. 12. General Legal Terms 12.1 Entire Agreement. This License Agreement constitutes the whole legal agreement between you and Opgal and governs your use of the SDK, and completely replaces any prior agreements between you and Opgal in relation to the SDK.

6 Waiver and Construction. You agree that if Opgal does not exercise or enforce any legal right or remedy which is contained in this License Agreement (or which Opgal has the benefit of under any applicable law), this will not be taken to be a formal waiver of Opgal's rights and that those rights or remedies will still be available to Opgal Severability. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this License Agreement is invalid, then that provision will be removed from this License Agreement without affecting the rest of this License Agreement. The remaining provisions of this License Agreement will continue to be valid and enforceable Relationship of the Parties. Each of you and Opgal acknowledge that other than the contractual relationship established by this License Agreement, this License Agreement will not be construed as creating any other relationship, or agency, partnership, employment, joint venture, fiduciary duty, or franchise, or any other form of legal association between you and Opgal. This License Agreement is not for the benefit of any third parties Export Restrictions. The SDK is subject to export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to distribution of your applications. these laws include restrictions on destinations, end users and end use Assignment. The rights granted in this License Agreement may not be assigned or transferred by you without the prior written approval from Opgal. You will not be be permitted to delegate your responsibilities or obligations under this License Agreement without the prior written approval from Opgal. Any attempted assignment of this License Agreement by you without prior written approval from Opgal will be null and void Governing Law. This License Agreement, and your relationship with Opgal under this License Agreement, shall be governed by the laws of the State of Israel without regard to its conflict of law provisions. You and Opgal agree to submit to the exclusive jurisdiction of the courts of Israel to resolve any legal matter arising from this License Agreement. Nothing in this License Agreement will limit Opgal's right to seek interim injunctive relief in any court of law. DEVELOPER SIGNATURE: DATE: