Terms and Conditions
This AGE (App Growth Engine) Software Development Kit License Agreement (the "License Agreement") is entered between you and Wupima, Inc., dba Hook Mobile, Inc. ("Hook Mobile").
The AGE Software Development Kit (referred to in this License Agreement as the "SDK" and specifically including the Hook Mobile system files and APIs) is licensed to you subject to the terms of this License Agreement.
This License Agreement forms a legally binding contract between you and Hook Mobile in relation to your use of the SDK and services provided by the SDK (the "Services").
2. Accepting this License Agreement
2a In order to use the SDK and Services, you must first agree to this License Agreement. You may not use the SDK if you do not accept this License Agreement.
2b You can accept this License Agreement by:
(A) clicking to accept or agree to this License Agreement, where this option is made available to you;
(B) creating an account with Hook Mobile; or
(C) actually using the SDK. In this case, you agree that use of the SDK constitutes acceptance of the License Agreement from that point onwards.
2c You may not use the SDK and may not accept the License Agreement if you are a person barred from receiving the SDK under the laws of the United States or other countries including the country in which you are resident or from which you use the SDK.
2d 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 Hook Mobile
3a Subject to the terms of this License Agreement, Hook Mobile grants you a limited, worldwide, royalty-free, non-assignable and non-exclusive license to:
(A) use the SDK to incorporate into your software applications ("Licensee Products") certain tools that permit your Licensee Products to obtain information regarding users of the Licensee Products ("Users"), subject to all limitations set forth in this Agreement;
(B) allow Users of the Licensee Products to use the SDK and Services as a feature within the Licensee Products, subject to all limitations set forth in this Agreement; and
(C) use the SDK and Services to send SMS and other messages to Users and to collect certain information from Users, including without limitation their mobile telephone numbers, device ID numbers, device type and operating systems, mobile carriers, address books and contacts (collectively "Data").
3b You agree that Hook Mobile or third parties own all legal right, title and interest in and to the SDK and Services, 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. Hook Mobile reserves all rights not expressly granted to you.
3c You may not copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or Services or any part thereof.
3d Use, reproduction and distribution of components of the SDK licensed under an open source software license are governed solely by the terms of that open source software license and not this License Agreement.
3e You agree that the form and nature of the SDK and Services that Hook Mobile provides may change without prior notice to you. You agree that Hook Mobile may stop (permanently or temporarily) providing the SDK and Services (or any features or services associated therewith) to you or to users generally at Hook Mobile's sole discretion, without prior notice to you.
3f Nothing in this License Agreement gives you a right to use any of Hook Mobile's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
3g 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 or Services.
4. Your use of the SDK and Services
4a Hook Mobile agrees that it obtains no right, title or interest from you (or your licensors) under this License Agreement in or to any software applications that you develop using the SDK, including any intellectual property rights that subsist in those applications.
4b 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 the United States or other relevant countries).
4c If you use the SDK or Services to retrieve a User's Data, you agree that you shall retrieve Data only with the User's explicit consent and only when, and for the limited purposes for which, the User has given you permission to do so.
4d If Users provide you with personal information (including Data), you must make the Users aware that you are responsible to provide legally adequate privacy notice and protection for those Users.
4e You further agree that if you use the SDK or Services to obtain User Data, you will protect the privacy and legal rights of those Users. Specifically, you represent, warrant and covenant that you have implemented and maintain a written and comprehensive information security program, and comply with all applicable laws and regulations, including without limitation all privacy and data security laws and regulations, such as the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00) and EU Member State laws or regulations implementing Data Protection Directive, 95/46/EC and, to the extent applicable, industry standards that apply to the protection of personally identifiable information.
4f You agree that you will not engage in any activity with the SDK or Services, 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 any third party including, but not limited to, Hook Mobile or any mobile communications carrier.
4g You agree that you are solely responsible for (and that Hook Mobile 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 Hook Mobile or any third party may suffer) of any such breach.
5. Your Developer Credentials
5.1 You agree that you are responsible for maintaining the confidentiality of any developer credentials that may be issued to you by Hook Mobile or which you may choose yourself and that you will be solely responsible for all applications that are developed under your developer credentials.
6. Usage Data
6a In order to continually innovate and improve the SDK, Hook Mobile may collect and publish certain usage statistics in aggregate, and certain information on which tools and/or services in the SDK are being used and how they are being used.
6b The data collected is only examined in the aggregate to continuously improve the SDK and related software and services. Hook Mobile will never contact your Users directly unless explicitly requested by you or your software.
7. Pricing and Payment
7a You agree to pay Hook Mobile the fees for the subscription level you selected when you registered with Hook Mobile. All fees agreed upon are due immediately. All charges are exclusive of taxes and similar charges. If Hook Mobile is required to pay sales, use, value-added or other taxes resulting from services rendered under this Agreement and attributable to you, then such taxes will be billed to and paid by you, excepting taxes based on Hook Mobile's USA income and except to the extent you are a tax-exempt entity. A late fee of one and one-half percent (1.5%) per month or the highest rate allowed under the law, whichever is lower, shall be assessed against overdue amounts.
8. Terminating this License Agreement
8a This License Agreement will continue to apply until terminated by either you or Hook Mobile as set out below.
8b If you want to terminate this License Agreement, you may do so by ceasing your use of the SDK, Services and any relevant developer credentials.
8c Hook Mobile may at any time, terminate this License Agreement with you if:
(A) you have breached any provision of this License Agreement; or
(B) Hook Mobile is required to do so by law; or
(C) the partner with whom Hook Mobile offered certain parts of SDK (such as APIs) to you has terminated its relationship with Hook Mobile or ceased to offer certain parts of the SDK to you; or
(D) Hook Mobile decides to no longer providing the SDK or certain parts of the SDK in its sole discretion.
8d Except to the extent expressly provided to the contrary in this Agreement, any rights to accrued payments, any right of action for breach of this Agreement which accrues prior to termination and the following provisions shall survive the termination of this Agreement for any reason: Sections 3.b - 3.g, 4b - 4.g, 9, 10, 11and . Hook Mobile shall have no obligation to refund prepaid fees.
9. DISCLAIMER OF WARRANTIES
9a YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SDK AND SERVICES ARE AT YOUR SOLE RISK AND THAT THE SDK AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM HOOK MOBILE.
9b YOUR USE OF THE SDK, SERVICES AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK AND SERVICES ARE AT YOUR 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.
9c HOOK MOBILE 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
10. LIMITATION OF LIABILITY
10a YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOOK MOBILE SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OR BREACH OF DATA, WHETHER OR NOT HOOK MOBILE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. IN NO EVENT SHALL HOOK MOBILE'S LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY YOU TO HOOK MOBILE UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION ARISES.
11a Confidential Information. Any non-public data, information and other materials of a party (and/or, if either party is bound to protect the confidentiality of any third party's information, of a third party) which is either marked "proprietary", "confidential" or should reasonably be understood by the receiving party to be confidential which is disclosed by either party ("Disclosing Party") to the other party ("Receiving Party") constitutes the confidential and proprietary information ("Confidential Information") of the Disclosing Party and the Receiving Party agrees to treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar Confidential Information, but in no
case with less than reasonable care. Without limiting the foregoing, (i)the SDK, Services and all software, source code, source documentation, inventions, know-how, and ideas, updates and any documentation and information relating thereto shall be the Confidential Information of Hook Mobile, and (ii)all information regarding Customer's network, Users, business plans and other information disclosed by Customer and identified as confidential to Hook Mobile shall be the Confidential Information of Customer. The Receiving Party shall retain the Confidential Information in trust and confidence and not use the Confidential Information for any purpose other than performing its obligations or exercising its rights under this
Agreement or disclose the Confidential Information to any third party without the Disclosing Party's express written consent; provided, however, these restrictions on disclosure shall not apply to information which the Receiving Party can establish: (i)is already known to the Receiving Party prior to disclosure by the Disclosing Party as evidenced by written records, (ii) becomes publicly available without fault of the Receiving Party, (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party, or (iv) is developed independently by the Receiving Party without use of or access to the Disclosing Party's
Confidential Information as evidenced by written records. The Receiving Party may disclose Confidential Information to the extent it is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure and reasonably cooperates with the Disclosing Party in limiting such disclosure.
To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Hook Mobile, 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 and Services, (b) any application you develop 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 claims related to a breach of Section 4.c or 4.e and (d) any non-compliance by you with this License Agreement.
13. Changes to the License Agreement
13a Hook Mobile may make changes to the License Agreement from time to time. When these changes are made, Hook Mobile will make a new version of the License Agreement available on the website where the SDK is made available.
14. General Legal Terms
14a This License Agreement constitutes the whole legal agreement between you and Hook Mobile that governs your use of the SDK and completely replaces any prior agreements in relation to the SDK and SERVICES
14b Hook Mobile or its agents may, with reasonable notice, audit your records and inspect your facilities to verify your compliance with the provisions of this Agreement. Such rights will remain in effect through a period ending two years from the termination of this License Agreement.
14c The failure of Hook Mobile to enforce its rights under this License Agreement at any time for any period shall not be construed as a waiver of such rights.
14d In the event that any of the provisions of this License Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14e EXPORT RESTRICTIONS. THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS AND END USE
14f This License Agreement is not transferable or assignable by either party, in whole or in part, without the prior written consent of the other party; except that either party may assign this License Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void.
14g This License Agreement, and your relationship with Hook Mobile under this License Agreement, shall be governed by the laws of Commonwealth of Virginia without regard to its conflict of laws provisions and excluding application of the Uniform Computer Information Transactions Act as adopted in Virginia. You and Hook Mobile agree to submit to the exclusive jurisdiction of the courts located within Fairfax County, Virginia to resolve any legal matter arising from this License Agreement. Notwithstanding this, you agree that Hook Mobile shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
March 8, 2012