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| 1 | +SOURCE CODE LICENSE AGREEMENT |
| 2 | + |
| 3 | +IMPORTANT - READ THIS CAREFULLY BEFORE DOWNLOADING, INSTALLING, USING OR |
| 4 | +ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT. |
| 5 | + |
| 6 | +THIS IS A LEGAL AGREEMENT BETWEEN STREAM.IO, INC. (“STREAM.IO”) AND THE |
| 7 | +BUSINESS ENTITY OR PERSON FOR WHOM YOU (“YOU”) ARE ACTING (“CUSTOMER”) AS THE |
| 8 | +LICENSEE OF THE PROPRIETARY SOFTWARE INTO WHICH THIS AGREEMENT HAS BEEN |
| 9 | +INCLUDED (THE “AGREEMENT”). YOU AGREE THAT YOU ARE THE CUSTOMER, OR YOU ARE AN |
| 10 | +EMPLOYEE OR AGENT OF CUSTOMER AND ARE ENTERING INTO THIS AGREEMENT FOR LICENSE |
| 11 | +OF THE SOFTWARE BY CUSTOMER FOR CUSTOMER’S BUSINESS PURPOSES AS DESCRIBED IN |
| 12 | +AND IN ACCORDANCE WITH THIS AGREEMENT. YOU HEREBY AGREE THAT YOU ENTER INTO |
| 13 | +THIS AGREEMENT ON BEHALF OF CUSTOMER AND THAT YOU HAVE THE AUTHORITY TO BIND |
| 14 | +CUSTOMER TO THIS AGREEMENT. |
| 15 | + |
| 16 | +STREAM.IO IS WILLING TO LICENSE THE SOFTWARE TO CUSTOMER ONLY ON THE FOLLOWING |
| 17 | +CONDITIONS: (1) YOU ARE A CURRENT CUSTOMER OF STREAM.IO; (2) YOU ARE NOT A |
| 18 | +COMPETITOR OF STREAM.IO; AND (3) THAT YOU ACCEPT ALL THE TERMS IN THIS |
| 19 | +AGREEMENT. BY DOWNLOADING, INSTALLING, CONFIGURING, ACCESSING OR OTHERWISE |
| 20 | +USING THE SOFTWARE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU |
| 21 | +REPRESENT, WARRANT AND ACKNOWLEDGE THAT (A) CUSTOMER IS A CURRENT CUSTOMER OF |
| 22 | +STREAM.IO; (B) CUSTOMER IS NOT A COMPETITOR OF STREAM.IO; AND THAT (C) YOU HAVE |
| 23 | +READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT, AND THAT CUSTOMER AGREES TO BE |
| 24 | +BOUND BY ALL THE TERMS OF THIS AGREEMENT. |
| 25 | + |
| 26 | +IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, |
| 27 | +STREAM.IO IS UNWILLING TO LICENSE THE SOFTWARE TO CUSTOMER, AND THEREFORE, DO |
| 28 | +NOT COMPLETE THE DOWNLOAD PROCESS, ACCESS OR OTHERWISE USE THE SOFTWARE, AND |
| 29 | +CUSTOMER SHOULD IMMEDIATELY RETURN THE SOFTWARE AND CEASE ANY USE OF THE |
| 30 | +SOFTWARE. |
| 31 | + |
| 32 | +1. SOFTWARE. The Stream.io software accompanying this Agreement, may include |
| 33 | +Source Code, Executable Object Code, associated media, printed materials and |
| 34 | +documentation (collectively, the “Software”). The Software also includes any |
| 35 | +updates or upgrades to or new versions of the original Software, if and when |
| 36 | +made available to you by Stream.io. “Source Code” means computer programming |
| 37 | +code in human readable form that is not suitable for machine execution without |
| 38 | +the intervening steps of interpretation or compilation. “Executable Object |
| 39 | +Code" means the computer programming code in any other form than Source Code |
| 40 | +that is not readily perceivable by humans and suitable for machine execution |
| 41 | +without the intervening steps of interpretation or compilation. “Site” means a |
| 42 | +Customer location controlled by Customer. “Authorized User” means any employee |
| 43 | +or contractor of Customer working at the Site, who has signed a written |
| 44 | +confidentiality agreement with Customer or is otherwise bound in writing by |
| 45 | +confidentiality and use obligations at least as restrictive as those imposed |
| 46 | +under this Agreement. |
| 47 | + |
| 48 | +2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, in |
| 49 | +consideration for the representations, warranties, and covenants made by |
| 50 | +Customer in this Agreement, Stream.io grants to Customer, during the term of |
| 51 | +this Agreement, a personal, non-exclusive, non-transferable, non-sublicensable |
| 52 | +license to: |
| 53 | + |
| 54 | +a. install and use Software Source Code on password protected computers at a Site, |
| 55 | +restricted to Authorized Users; |
| 56 | + |
| 57 | +b. create derivative works, improvements (whether or not patentable), extensions |
| 58 | +and other modifications to the Software Source Code (“Modifications”) to build |
| 59 | +unique scalable newsfeeds, activity streams, and in-app messaging via Stream’s |
| 60 | +application program interface (“API”); |
| 61 | + |
| 62 | +c. compile the Software Source Code to create Executable Object Code versions of |
| 63 | +the Software Source Code and Modifications to build such newsfeeds, activity |
| 64 | +streams, and in-app messaging via the API; |
| 65 | + |
| 66 | +d. install, execute and use such Executable Object Code versions solely for |
| 67 | +Customer’s internal business use (including development of websites through |
| 68 | +which data generated by Stream services will be streamed (“Apps”)); |
| 69 | + |
| 70 | +e. use and distribute such Executable Object Code as part of Customer’s Apps; and |
| 71 | + |
| 72 | +f. make electronic copies of the Software and Modifications as required for backup |
| 73 | +or archival purposes. |
| 74 | + |
| 75 | +3. RESTRICTIONS. Customer is responsible for all activities that occur in |
| 76 | +connection with the Software. Customer will not, and will not attempt to: (a) |
| 77 | +sublicense or transfer the Software or any Source Code related to the Software |
| 78 | +or any of Customer’s rights under this Agreement, except as otherwise provided |
| 79 | +in this Agreement, (b) use the Software Source Code for the benefit of a third |
| 80 | +party or to operate a service; (c) allow any third party to access or use the |
| 81 | +Software Source Code; (d) sublicense or distribute the Software Source Code or |
| 82 | +any Modifications in Source Code or other derivative works based on any part of |
| 83 | +the Software Source Code; (e) use the Software in any manner that competes with |
| 84 | +Stream.io or its business; or (e) otherwise use the Software in any manner that |
| 85 | +exceeds the scope of use permitted in this Agreement. Customer shall use the |
| 86 | +Software in compliance with any accompanying documentation any laws applicable |
| 87 | +to Customer. |
| 88 | + |
| 89 | +4. OPEN SOURCE. Customer and its Authorized Users shall not use any software or |
| 90 | +software components that are open source in conjunction with the Software |
| 91 | +Source Code or any Modifications in Source Code or in any way that could |
| 92 | +subject the Software to any open source licenses. |
| 93 | + |
| 94 | +5. CONTRACTORS. Under the rights granted to Customer under this Agreement, |
| 95 | +Customer may permit its employees, contractors, and agencies of Customer to |
| 96 | +become Authorized Users to exercise the rights to the Software granted to |
| 97 | +Customer in accordance with this Agreement solely on behalf of Customer to |
| 98 | +provide services to Customer; provided that Customer shall be liable for the |
| 99 | +acts and omissions of all Authorized Users to the extent any of such acts or |
| 100 | +omissions, if performed by Customer, would constitute a breach of, or otherwise |
| 101 | +give rise to liability to Customer under, this Agreement. Customer shall not |
| 102 | +and shall not permit any Authorized User to use the Software except as |
| 103 | +expressly permitted in this Agreement. |
| 104 | + |
| 105 | +6. COMPETITIVE PRODUCT DEVELOPMENT. Customer shall not use the Software in any way |
| 106 | +to engage in the development of products or services which could be reasonably |
| 107 | +construed to provide a complete or partial functional or commercial alternative |
| 108 | +to Stream.io’s products or services (a “Competitive Product”). Customer shall |
| 109 | +ensure that there is no direct or indirect use of, or sharing of, Software |
| 110 | +source code, or other information based upon or derived from the Software to |
| 111 | +develop such products or services. Without derogating from the generality of |
| 112 | +the foregoing, development of Competitive Products shall include having direct |
| 113 | +or indirect access to, supervising, consulting or assisting in the development |
| 114 | +of, or producing any specifications, documentation, object code or source code |
| 115 | +for, all or part of a Competitive Product. |
| 116 | + |
| 117 | +7. LIMITATION ON MODIFICATIONS. Notwithstanding any provision in this Agreement, |
| 118 | +Modifications may only be created and used by Customer as permitted by this |
| 119 | +Agreement and Modification Source Code may not be distributed to third parties. |
| 120 | +Customer will not assert against Stream.io, its affiliates, or their customers, |
| 121 | +direct or indirect, agents and contractors, in any way, any patent rights that |
| 122 | +Customer may obtain relating to any Modifications for Stream.io, its |
| 123 | +affiliates’, or their customers’, direct or indirect, agents’ and contractors’ |
| 124 | +manufacture, use, import, offer for sale or sale of any Stream.io products or |
| 125 | +services. |
| 126 | + |
| 127 | +8. DELIVERY AND ACCEPTANCE. The Software will be delivered electronically pursuant |
| 128 | +to Stream.io standard download procedures. The Software is deemed accepted upon |
| 129 | +delivery. |
| 130 | + |
| 131 | +9. IMPLEMENTATION AND SUPPORT. Stream.io has no obligation under this Agreement to |
| 132 | +provide any support or consultation concerning the Software. |
| 133 | + |
| 134 | +10. TERM AND TERMINATION. The term of this Agreement begins when the Software is |
| 135 | +downloaded or accessed and shall continue until terminated. Either party may |
| 136 | +terminate this Agreement upon written notice. This Agreement shall |
| 137 | +automatically terminate if Customer is or becomes a competitor of Stream.io or |
| 138 | +makes or sells any Competitive Products. Upon termination of this Agreement for |
| 139 | +any reason, (a) all rights granted to Customer in this Agreement immediately |
| 140 | +cease to exist, (b) Customer must promptly discontinue all use of the Software |
| 141 | +and return to Stream.io or destroy all copies of the Software in Customer’s |
| 142 | +possession or control. Any continued use of the Software by Customer or attempt |
| 143 | +by Customer to exercise any rights under this Agreement after this Agreement |
| 144 | +has terminated shall be considered copyright infringement and subject Customer |
| 145 | +to applicable remedies for copyright infringement. Sections 2, 5, 6, 8 and 9 |
| 146 | +shall survive expiration or termination of this Agreement for any reason. |
| 147 | + |
| 148 | +11. OWNERSHIP. As between the parties, the Software and all worldwide intellectual |
| 149 | +property rights and proprietary rights relating thereto or embodied therein, |
| 150 | +are the exclusive property of Stream.io and its suppliers. Stream.io and its |
| 151 | +suppliers reserve all rights in and to the Software not expressly granted to |
| 152 | +Customer in this Agreement, and no other licenses or rights are granted by |
| 153 | +implication, estoppel or otherwise. |
| 154 | + |
| 155 | +12. WARRANTY DISCLAIMER. USE OF THIS SOFTWARE IS ENTIRELY AT YOURS AND CUSTOMER’S |
| 156 | +OWN RISK. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND |
| 157 | +WHATSOEVER. STREAM.IO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY OF ANY |
| 158 | +KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT |
| 159 | +LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR |
| 160 | +PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS, EFFORTS, |
| 161 | +QUALITY OR QUIET ENJOYMENT. STREAM.IO DOES NOT WARRANT THAT THE SOFTWARE IS |
| 162 | +ERROR-FREE, WILL FUNCTION WITHOUT INTERRUPTION, WILL MEET ANY SPECIFIC NEED |
| 163 | +THAT CUSTOMER HAS, THAT ALL DEFECTS WILL BE CORRECTED OR THAT IT IS |
| 164 | +SUFFICIENTLY DOCUMENTED TO BE USABLE BY CUSTOMER. TO THE EXTENT THAT STREAM.IO |
| 165 | +MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND |
| 166 | +DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. |
| 167 | +CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE |
| 168 | +EXPRESS WARRANTIES IN THIS AGREEMENT. |
| 169 | + |
| 170 | +13. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, STREAM.IO’S |
| 171 | +TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE OR |
| 172 | +THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, |
| 173 | +SHALL NOT EXCEED $100. IN NO EVENT WILL STREAM.IO BE LIABLE FOR ANY INDIRECT, |
| 174 | +CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES OF ANY KIND |
| 175 | +WHATSOEVER, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING |
| 176 | +TO THE SOFTWARE EVEN IF STREAM.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH |
| 177 | +DAMAGES. CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON |
| 178 | +ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT STREAM.IO WOULD NOT ENTER INTO |
| 179 | +THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. |
| 180 | + |
| 181 | +14. General. Customer may not assign or transfer this Agreement, by operation of |
| 182 | +law or otherwise, or any of its rights under this Agreement (including the |
| 183 | +license rights granted to Customer) to any third party without Stream.io’s |
| 184 | +prior written consent, which consent will not be unreasonably withheld or |
| 185 | +delayed. Stream.io may assign this Agreement, without consent, including, but |
| 186 | +limited to, affiliate or any successor to all or substantially all its business |
| 187 | +or assets to which this Agreement relates, whether by merger, sale of assets, |
| 188 | +sale of stock, reorganization or otherwise. Any attempted assignment or |
| 189 | +transfer in violation of the foregoing will be null and void. Stream.io shall |
| 190 | +not be liable hereunder by reason of any failure or delay in the performance of |
| 191 | +its obligations hereunder for any cause which is beyond the reasonable control. |
| 192 | +All notices, consents, and approvals under this Agreement must be delivered in |
| 193 | +writing by courier, by electronic mail, or by certified or registered mail, |
| 194 | +(postage prepaid and return receipt requested) to the other party at the |
| 195 | +address set forth in the customer agreement between Stream.io and Customer and |
| 196 | +will be effective upon receipt or when delivery is refused. This Agreement will |
| 197 | +be governed by and interpreted in accordance with the laws of the State of |
| 198 | +Colorado, without reference to its choice of laws rules. The United Nations |
| 199 | +Convention on Contracts for the International Sale of Goods does not apply to |
| 200 | +this Agreement. Any action or proceeding arising from or relating to this |
| 201 | +Agreement shall be brought in a federal or state court in Denver, Colorado, and |
| 202 | +each party irrevocably submits to the jurisdiction and venue of any such court |
| 203 | +in any such action or proceeding. All waivers must be in writing. Any waiver or |
| 204 | +failure to enforce any provision of this Agreement on one occasion will not be |
| 205 | +deemed a waiver of any other provision or of such provision on any other |
| 206 | +occasion. If any provision of this Agreement is unenforceable, such provision |
| 207 | +will be changed and interpreted to accomplish the objectives of such provision |
| 208 | +to the greatest extent possible under applicable law and the remaining |
| 209 | +provisions will continue in full force and effect. Customer shall not violate |
| 210 | +any applicable law, rule or regulation, including those regarding the export of |
| 211 | +technical data. The headings of Sections of this Agreement are for convenience |
| 212 | +and are not to be used in interpreting this Agreement. As used in this |
| 213 | +Agreement, the word “including” means “including but not limited to.” This |
| 214 | +Agreement (including all exhibits and attachments) constitutes the entire |
| 215 | +agreement between the parties regarding the subject hereof and supersedes all |
| 216 | +prior or contemporaneous agreements, understandings and communication, whether |
| 217 | +written or oral. This Agreement may be amended only by a written document |
| 218 | +signed by both parties. The terms of any purchase order or similar document |
| 219 | +submitted by Customer to Stream.io will have no effect. |
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