Software Development SDK Agreement

Software Development SDK Agreement

Parties

Recitals

WHEREAS, Client desires to obtain from Provider a software development kit, related application programming interfaces, documentation, updates and support (collectively, the "SDK") to enable Client to integrate certain software functionality into Client's products and services; and

WHEREAS, Provider has expertise in developing and licensing software and is willing to grant Client a limited license to use the SDK and to provide development services subject to the terms and conditions set forth herein; and

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the parties agree effective as of (the "Effective Date").

Scope of Work

Provider will deliver to Client the SDK, related documentation, and the services described below. Provider shall perform the services with commercially reasonable skill and care consistent with industry standards.

Deliverables shall include the SDK binaries, API reference, integration guides, example code, and up to hours of reasonable technical consultation as described in the Scope of Work. Any additional work will be subject to a change order agreed in writing by the parties.

Payment Terms

As consideration for the license and services, Client shall pay Provider the fees set forth below. Except as otherwise stated, amounts are quoted in:

Invoices are due within days of receipt. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law, calculated monthly and compounded.

All payments are exclusive of taxes. Client shall be responsible for any sales, use, value-added or other taxes payable with respect to the fees, excluding taxes based on Provider's net income.

Term and Termination

The term of this Agreement begins on and, unless earlier terminated as provided herein, continues until .

Either party may terminate this Agreement for convenience upon days' prior written notice. Either party may terminate immediately for material breach if the breaching party fails to cure such breach within days after receipt of written notice specifying the nature of the breach.

Upon termination, Client shall cease all use of the SDK and, at Provider's option, return or certify destruction of Provider Confidential Information. Termination shall not relieve Client of its obligation to pay fees for services rendered or deliverables accepted prior to the effective date of termination.

Confidentiality

"Confidential Information" means non-public information disclosed by one party to the other, whether oral, written or electronic, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information. Confidential Information of Provider includes, without limitation, the SDK, source code, algorithms, architecture diagrams, and roadmaps.

The receiving party shall (a) use Confidential Information only to exercise its rights and perform its obligations under this Agreement; (b) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information but no less than reasonable care; and (c) not disclose Confidential Information to any third party except to employees, contractors or advisors who have a need to know and who are bound by confidentiality obligations at least as protective as those hereunder.

Confidential Information does not include information that: (i) is or becomes publicly available other than through a breach of this Agreement; (ii) was lawfully known to the receiving party prior to disclosure; (iii) is independently developed without use of the disclosing party's Confidential Information; or (iv) is required to be disclosed by law, provided the receiving party gives prompt notice and cooperates with the disclosing party in seeking confidential treatment or a protective order.

Intellectual Property and License

Provider retains all right, title and interest in and to the SDK, including all intellectual property rights therein. Subject to Client's payment of all fees and compliance with this Agreement, Provider grants Client a non-exclusive, non-transferable, revocable license to use the SDK solely for Client's internal product development and distribution in object code form in accordance with the documentation and this Agreement.

Client shall not: reverse engineer, decompile, disassemble, attempt to derive source code from, or otherwise attempt to derive the underlying structure, algorithms or ideas of the SDK except to the extent expressly permitted by applicable law; nor sublicense, rent, lease, or provide the SDK to third parties except as expressly permitted under a written agreement with Provider.

Warranties; Disclaimers; Limitation of Liability

Provider warrants that the SDK, when used as permitted herein, will perform substantially in accordance with the documentation for a period of ninety (90) days following delivery. Provider's sole obligation and Client's exclusive remedy for a breach of this warranty shall be, at Provider's option, correction of the nonconformity, replacement or refund of fees paid for the nonconforming portion of the SDK.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SDK IS PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING LOSS OF PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INFRINGEMENT INDEMNITY OBLIGATIONS, EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

Indemnification

Provider shall defend, indemnify and hold Client harmless from and against any third-party claim that the unmodified SDK, as delivered by Provider, infringes such third party's issued patents, copyrights or trade secrets, and shall pay reasonable damages finally awarded against Client or amounts paid in settlement as a result of such claim, provided Provider is given prompt written notice and sole control of the defense and settlement of the claim. Client shall cooperate in the defense at Provider's expense.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in that state for disputes arising out of this Agreement.

Entire Agreement; Amendments

This Agreement, including any exhibits, attachments and mutually executed statements of work, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or communications, whether written or oral. No amendment or waiver shall be effective unless in writing and signed by authorized representatives of both parties.

General Provisions

Neither party may assign this Agreement without the prior written consent of the other, except to an affiliate or in connection with a merger or sale of substantially all assets, provided the assignee assumes obligations hereunder. If any provision of this Agreement is held unenforceable, the remaining provisions shall remain in full force and effect.

Notices under this Agreement shall be in writing and delivered to the addresses set forth above or such other address as a party notifies in writing. Notices shall be deemed received on the date of delivery if delivered personally, on the next business day if sent by overnight courier, or three business days after deposit in the mail with first-class postage prepaid.

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