CROWDOPTIC APPLICATION DEVELOPMENT AGREEMENT
Last updated: August 1, 2013
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND KBA2 INC. DBA CROWDOPTIC THAT GOVERNS YOUR PARTICIPATION AS A CROWDOPTIC APPLICATION DEVELOPER. BY CLICKING ON THE "AGREE" BUTTON AND CHECKING THE BOX AT THE BOTTOM OF THIS PAGE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THIS AGREEMENT.
TERMS AND CONDITIONS
This Application Development Agreement ("Agreement") is a legal agreement between you (either an individual or legal entity) and KBA2 Inc. DBA CrowdOptic ("CrowdOptic") stating the terms and conditions governing your rights and obligations as a participant in CrowdOptic's Application Development Program ("Program"). By proceeding: (i) you represent and warrant that you have full power and authority to enter into this Agreement (if you are an individual) or to bind the entity entering into this Agreement (if you represent a legal entity); and (ii) you are joining the Program and you and CrowdOptic agree to be bound by the terms and conditions of this Agreement. If you do not agree, press "Cancel" and your registration as a participant in the Program will be cancelled.
1. RELATIONSHIP WITH CROWDOPTIC
You understand and agree that by becoming a participant in the Program, no legal partnership or agency relationship is created between you and CrowdOptic. You and CrowdOptic are independent contractors, and nothing in this Agreement shall be construed to (i) give either you or CrowdOptic the power to direct and control the day‐to‐day activities of the other, (ii) constitute a joint venture, co‐ownership or employment relationship, or (iii) authorize either you or CrowdOptic to create or assume any obligation on behalf of the other for any purpose whatsoever. If you are an individual, you hereby confirm that you are of the legal age of majority in the jurisdiction in which you reside and have stated as your country in the on‐line application form. This Agreement is void where prohibited by law and the right to participate in the Program is not granted in such jurisdictions. Unless otherwise agreed or permitted by CrowdOptic in writing, you cannot share or transfer any benefits you receive under the Program to other entities or individuals, other than to those of your employees (if you are an entity) that you have listed as Contact Persons in the on‐line application form, for participation in the Program and use of such benefits on your behalf.
2. PARTICIPANT BENEFITS
Subject to the terms and conditions of this Agreement and as a participant in the Program, you will be granted access to a password protected extranet created by CrowdOptic (the "Partner Site") and CrowdOptic may provide you with certain proprietary software, firmware, hardware, documentation and/or services, including but not limited to so called Software Development Kits (SDK), available for download from the Partner Site, and access to Application Programming Interfaces (API), the tools of which are intended for use by you for, among other things, the further development of separate applications which are compatible with CrowdOptic products and which may be integrated in and to such products (the SDK, API and any related documentation or materials that may be provided to you in connection with the Program are collectively referred to as the "Development Tools"). The Development Tool(s) and any use thereof by you may be subject to the additional terms and conditions of separate license agreements and nothing in this Agreement shall be interpreted or deemed as a limitation or restriction of the provisions in any such license agreements. In addition, CrowdOptic may at its sole discretion also disclose to you certain information regarding (for instance) upcoming product launches, prior to such information being publicly available ("Pre‐Release Materials").
3. PARTICIPANT OBLIGATIONS
As a participant in the Program you must at all times adhere to the terms and conditions of this Agreement. You agree not to exploit the Partner Site, the Development Tools, Pre‐Release Materials or any other material or documentation provided to you by CrowdOptic in any unauthorized way. You agree to follow CrowdOptic's Partner guidelines, available at http://partner.crowdoptic.com and as amended from time to time. You agree not to use any name, trademark, service mark, trade name, trade dress or logo belonging or licensed to CrowdOptic or any similar mark, except as may be explicitly authorized in writing by CrowdOptic in each case. You may not copy, modify, create derivative works based on, publicly perform, publicly display, sell, rent, lease, loan, publish, distribute or otherwise transmit any of the Partner Site, Development Tools, Pre-Release Materials or other material or documentation provided to you by CrowdOptic except as expressly permitted under this Agreement or any separate license or agreement between you and CrowdOptic or any license terms accompanying any of the foregoing. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of the Partner Site, Development Tools, Pre-Release Materials or any other material or documentation provided by CrowdOptic.
As a participant in the Program, CrowdOptic may make available to you certain technical support. You agree that any materials provided to you as part of such support are licensed to you and shall be used by you in accordance with the terms and conditions pertaining to such license. You will be solely responsible for any restoration of lost or altered files, data, programs or other materials provided by you to CrowdOptic. Further, CrowdOptic shall be free to use any and all information it receives from you, including suggestions, comments or other communication regarding CrowdOptic products, for any purpose whatsoever without making any payment or obtaining any further authorization from you.
5. CONTACT PERSONS
If you are an entity, you will be requested to submit the names and business e‐mail addresses of those of your employees who will act as "Contact Persons" for your entity under this Agreement. If you list more than one person as Contact Person, the person listed as "Main Business Contact" will be the overall responsible Contact Person under this Agreement, and will also be responsible for notifying CrowdOptic of any replacement or removal of Contact Persons. As stated below in Section 10, CrowdOptic may also send you or the Main Business Contact a yearly reminder requesting you to either confirm or update the list of Contact Persons.
6. INTELLECTUAL PROPERTY RIGHTS
You retain all right, title and interest in and to all of your own Intellectual Property Rights. Correspondingly, CrowdOptic retains all right, title and interest in its Intellectual Property Rights. Nothing in this Agreement shall be construed as an assignment of such rights to either party and there are no implied licenses under this Agreement. For the purpose of this Section 6, "Intellectual Property Rights" shall mean all worldwide rights to patents, designs, utility models, trademarks, service marks, trade names, trade dress, know‐how, trade secrets, copyrights, and any other industrial and intellectual property rights.
You agree that any and all nonpublic information, trade secrets and know how, whether in oral, written or other tangible form, that CrowdOptic designates as being confidential or which information has a reasonable basis for being presumed confidential, including Pre‐Release Materials, disclosed by CrowdOptic to you pursuant to this Agreement, and any and all content available through the Partner Site shall be considered and referred to as "CrowdOptic's Confidential Information". You undertake not to reveal or disclose to any third party CrowdOptic's Confidential Information or use CrowdOptic's Confidential Information other than for the purpose of fulfilling your rights and obligations under this Agreement. Notwithstanding the foregoing, CrowdOptic's Confidential Information does not include information which (i) is already in the public domain or becomes available to the public through no breach of this Agreement by you; (ii) was lawfully in your possession prior to receipt from CrowdOptic; (iii) is received independently from a third party free to lawfully disclose such information to you; or (iv) is independently developed by you without use of or access to any Confidential Information or any breach of this Agreement, as evidenced by tangible records. You may disclose CrowdOptic's Confidential Information if required by law or pursuant to a valid judicial or governmental order, provided that, prior to such disclosure, you notify CrowdOptic in writing of such requirement and reasonably cooperate in CrowdOptic's efforts in obtaining an order protecting CrowdOptic's Confidential Information from disclosure. All CrowdOptic's Confidential Information, including any copies thereof, shall remain the property of CrowdOptic. You agree not to decompile, reverse engineer, disassemble, rent, sell, transmit or loan CrowdOptic's Confidential Information, in whole or in part.
8. NO WARRANTY
THE DEVELOPMENT TOOLS, YOUR ACCESS TO THE PARTNER SITE, ANY AND ALL PRE‐RELEASE MATERIALS AND OTHER DOCUMENTATION OR MATERIAL OR SERVICES PROVIDED BY CROWDOPTIC AS AN ACTIVITY UNDERTAKEN UNDER THIS AGREEMENT ARE PROVIDED TO YOU "AS IS", WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER. CROWDOPTIC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON‐INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTY THAT MAY ARISE BY REASON OF TRADE USAGE, CUSTOM OR COURSE OF DEALING. CROWDOPTIC DOES NOT REPRESENT OR WARRANT THAT: (I) THE DEVELOPMENT TOOL(S) AND/OR THE PARTNER SITE AND THE SERVICES AND CONTENT PROVIDED THEREUNDER WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, SECURE OR ERROR FREE; (II) DEFECTS IN THE DEVELOPMENT TOOL(S) AND/OR IN THE PARTNER SITE WILL BE CORRECTED; OR (III) THE DEVELOPMENT TOOL(S), THE PARTNER SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR SOLE REMEDY AGAINST CROWDOPTIC FOR ANY DISSATISFACTION WITH THE PROGRAM IS TO STOP PARTICIPATING IN THE PROGRAM.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL CROWDOPTIC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFIT, REVENUE OR PRODUCTION, INTEREST ON INVESTMENTS, COST OF CAPITAL, LOSS OF DATA OR SOFTWARE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, EQUIPMENT OR SERVICES, DOWNTIME COSTS, CLAIMS OF CUSTOMERS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR IMPAIRMENT OF OTHER GOODS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IF CROWDOPTIC IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS THAT ARISES OUT OF OR IS RELATED TO YOUR PARTICIPATION IN THE PROGRAM OR THIS AGREEMENT, CROWDOPTIC'S ENTIRE CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED US DOLLARS (US $100). THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE LIMITATION OR ANY EXCLUSIVE REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify and hold CrowdOptic and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your participation in the Program, your use of the Partner Site, Development Tools, or Pre-Release Materials, any software, application, product or service developed or provided by you, or your relationship with CrowdOptic.
11. TERM AND TERMINATION
This Agreement becomes valid when accepted by you and shall continue in force until terminated as provided below. You may terminate this Agreement, and accordingly your participation in the Program, by submitting a request in writing via electronic mail to CrowdOptic at: email@example.com. CrowdOptic may terminate this Agreement at any time with or without cause and with or without notice to you, and further reserves the right to change, suspend or discontinue your participation in the Program at any time, and may impose limits on certain features and materials offered to you or restrict your access to the benefits granted to you under this Agreement without notice or liability. If CrowdOptic discontinues your participation in the Program and terminates the Agreement in accordance herewith, CrowdOptic also reserves the right to deny your reapplication.
12. CONSEQUENCES OF TERMINATION
Upon the termination or expiration of this Agreement for whatever reason, all rights granted to you as a as a participant in the Program will cease, including your right to access the Partner Site, and you agree to destroy any and all CrowdOptic's Confidential Information that is in your possession or control. At CrowdOptic's request, you agree to provide a written certification of such destruction to CrowdOptic. Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall survive the termination or cancellation. Without limiting the foregoing, Sections 6, 7, 8, 9, 10 and 16 shall survive termination or cancellation of the Agreement.
13. AMENDMENTS, ETC.
CrowdOptic reserves the right, at its discretion and without notice to you, to modify this Agreement, including any rules and policies at any time. You can review the most current version of this Agreement at any time at: http://partner.crowdoptic.com/development-agreement. You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements and additional rules or policies) ("Amendments") communicated to you by CrowdOptic. All Amendments are hereby incorporated into this Agreement by this reference and your continued participation in the Program and/or use of the Partner Site, Development Tools, Pre-Release Materials or other material or documentation provided by CrowdOptic under this Agreement will indicate your acceptance of any such Amendments.
14. CROWDOPTIC INDEPENDENT DEVELOPMENT
Nothing in this Agreement shall be construed to limit CrowdOptic's right to develop independently or acquire, license, market, promote or distribute products or applications that are similar or otherwise compete with products or applications developed, acquired, licensed, marketed, promoted or distributed by you.
15. PERSONAL DATA
16. GOVERNING LAW; DISPUTE RESOLUTION
Governing Law: This Agreement shall, to the extent possible, be governed by the laws of the State of California, without regard to any conflict of law principles. This Agreement and the parties' rights and obligations under this Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, which is expressly excluded. Dispute Resolution: Any dispute, controversy or claim arising out of or in connection with this Agreement or the breach, termination or invalidity thereof shall be brought exclusively in the courts located in the county of San Francisco, California or the U.S. District Court for the Northern District of California and you expressly waive any objections to personal jurisdiction of and venue in such courts.
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing and no waiver of any term or breach of this Agreement will constitute a waiver of any other term or breach.
You may not assign or delegate any of your rights or obligations under this Agreement to any third party without CrowdOptic's prior written consent, by operation of law or otherwise. A merger, sale of assets or change of control shall be considered an assignment. CrowdOptic may freely assign and delegate its rights and obligations under this Agreement. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, successors and assigns.
20. THIRD PARTY BENEFICIARIES
This Agreement does not confer any third party beneficiary rights, except to CrowdOptic's licensors, supplies and affiliates. You agree that CrowdOptic's licensors, suppliers and affiliates are third party beneficiaries of this Agreement, with the right to enforce this Agreement against you as a third party beneficiary.
21. ENGLISH LANGUAGE
English is the governing language of this Agreement, and all notices, communications, written or oral, and proceedings relating to this Agreement shall be made and conducted in English.
22. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any other communications, proposals or agreements.