This SDK License Agreement (“Agreement”) is between Smaato, Inc. (“Smaato”) and the person or entity accessing, installing or using the licensed software and any associated documentation (“You”). The terms also apply to documentation for the application programming interfaces (collectively the “APIs”) and any software code provided by Smaato in conjunction with such documentation. The software code, documentation, APIs, and other materials made available by Smaato are collectively referred to in this Agreement as the “SDK”. This Agreement defines each party’s rights in the SDK.
BY DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE USING THE SDK, YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL, ACCESS OR USE THE SDK.
The SDK is made available by Smaato to integrate and enable certain functionality into Your applications to facilitate the sale of online advertising space. This Agreement applies to any SDK that includes, displays, or links to this Agreement, and to any updates, supplements, or support services for the SDK, unless other terms accompany those items. If so, those other terms apply.
Subject to the terms and conditions of this Agreement, Smaato grants You a non-exclusive, nontransferable, royalty-free license to:
The SDK and any authorized copies that You make are the intellectual property of, and all rights therein are owned by, Smaato. The structure, organization, and code of the SDK are valuable trade secrets and confidential information of Smaato. The SDK is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. You agree to protect Smaato’s copyright and other ownership interests in all items in the SDK. You agree that all copies of items in the SDK reproduced for any reason by You will contain the same copyright, trademark, and other proprietary notices as in the SDK. Smaato retains all right, title, and ownership throughout the world in the intellectual property embodied within the SDK. Except as stated herein, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the SDK, and all rights not expressly granted are reserved by Smaato.
Smaato is not obligated to provide any technical or other support (“Support”) for the SDK. However, if Smaato chooses to provide any Support to You, Your use of such Support will be governed by then-current Smaato policies.
With respect to any technical or other information You provide to Smaato (whether oral or written) in connection with the SDK (including but not limited to reporting errors, or making suggestions for improvements or changes to the SDK), You agree that Smaato has a perpetual, irrevocable, unrestricted right to use such information for its business purposes, including for product support and development. Smaato will not use such information in a form that personally identifies You.
Smaato is not obligated to provide any upgrades or future versions of the SDK. Smaato reserves the right to discontinue offering the SDK, or to modify the SDK at any time, in its sole discretion. If You are dissatisfied with any aspect of the SDK at any time, Your sole and exclusive remedy is to cease using the SDK.
THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL UNITED STATES AND INTERNATIONAL EXPORT LAWS AND REGULATIONS, WHICH INCLUDE RESTRICTIONS ON DESTINATIONS, END-USERS AND END USE. You acknowledge and agree that You will not import, export, or re-export, directly or indirectly, the SDK or related information to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of the various European countries. You further agree to defend, indemnify, and hold harmless Smaato, its affiliates, and their respective directors, officers, employees, agents and representatives from any losses, costs, claims, or other liabilities arising out of your breach of this Section.
Nothing in this Agreement gives you a right to use any of Smaato’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features. You agree that you will not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any trademark of Smaato or any mark that is confusingly similar to or will dilute the distinctive nature of the Smaato trademarks. You also agree that you will not include the term “Smaato” as part of the name for any application that you develop using the SDK.
Smaato may change this Agreement by giving You notice before the change is in force. If You do not agree to these changes, then You must cancel and stop using the SDK before the changes are in force. If You do not stop using the SDK, then Your use of the SDK will continue under the changed Agreement. Smaato may give notices to You, at Smaato’s option, by posting on any portion of the Smaato website (www.smaato.com) or Smaato Publisher Platform (SPX) dashboard, or by electronic mail to any email address provided by You to Smaato.
This Agreement is effective until terminated. Smaato has the right to terminate this Agreement immediately if You fail to comply with any term of this Agreement. Despite anything contained in this Agreement to the contrary, Smaato may, in its sole discretion, terminate or suspend access to the SDK at any time. You acknowledge that termination of Your rights and/or monetary damages may not be a sufficient remedy if You breach this license and that Smaato will be entitled, without waiving any other rights or remedies, to seek injunctive or equitable relief in the event of a breach. Upon any termination of this Agreement, You must (a) destroy or return to Smaato all full and partial copies of the SDK and (b) discontinue distribution of any Developed Programs. Sections 2, 3, 5, 7, 8 and 11-17, along with any other provisions that would reasonably be deemed to survive termination, shall survive any termination and/or expiration of this Agreement.
THE SDK IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. SMAATO DISCLAIMS ALL WARRANTIES – STATUTORY, EXPRESS OR IMPLIED – INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SMAATO PROVIDES NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES WITH RESPECT TO YOUR USE OF THE SDK. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE.
You and Smaato agree that the foregoing warranty disclaimer and limitation of liability set forth below, respectively, fairly allocate the risks in the Agreement between the parties. You and Smaato further agree that this allocation is an essential element of the basis of the bargain between the parties, that Smaato would not have entered this Agreement without these limitations, and that the limitations will apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
IN NO EVENT SHALL SMAATO BE LIABLE TO YOU FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES. SMAATO’S CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE LESSER OF (A) THE ACTUAL AMOUNTS PAID BY YOU TO SMAATO FOR THE SDK AND (B) FIVE DOLLARS ($5.00).
To the maximum extent permitted by law, You agree to defend, indemnify, and hold harmless Smaato, its affiliates, and their respective directors, officers, employees, agents and representatives 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 allegedly based (in whole or in part) on: (a) Your use of the SDK; (b) any of Your applications using 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; (c) any violation by You of any applicable law or regulation; or (d) any non-compliance by You with the terms of this Agreement.
This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the City and County of San Francisco, California and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
This Agreement is not assignable or transferable, in whole or in part, by You, whether involuntarily, by merger, operation of law or otherwise, without Smaato’s prior written consent. Any attempted transfer in violation of this Section is void. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. Captions in this Agreement are for the convenience of the parties only and will not affect the interpretation or construction of this Agreement. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements relating to the SDK, whether written or oral.