Rainway SDK End-User License Agreement

IMPORTANT-READ CAREFULLY

THIS RAINWAY SDK END-USER LICENSE AGREEMENT (THIS "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR SINGLE ENTITY) (HEREAFTER REFERRED TO AS "LICENSEE") AND RAINWAY INC. A DELAWARE CORPORATION (HEREAFTER REFERRED TO AS "RAINWAY") FOR THE RAINWAY SOFTWARE DEVELOPMENT KIT (THE "SDK") BEING PROVIDED BY RAINWAY CONCURRENTLY WITH LICENSEE'S ACKNOWLEDGEMENT OF THIS AGREEMENT.

BY DOWNLOADING, ACCESSING, RUNNING, OR OTHERWISE USING THE SDK OR ANY COMPONENT THEREOF, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, LICENSEE IS NOT AUTHORIZED TO ACCESS OR USE THE SDK AND SHOULD IMMEDIATELY DISCONTINUE USE OF THE SAME AND RETURN THE SDK AND MATERIALS TO RAINWAY.

LICENSEE ACKNOWLEDGES THAT IT OR THE ORGANIZATION ON BEHALF OF WHICH LICENSEE IS ACTING MAY HAVE ENTERED INTO A SEPARATE SDK LICENSE AGREEMENT WITH RAINWAY (“COMMERCIAL LICENSE”) WHICH AUTHORIZES USE OF THE SDK IN CONNECTION WITH THE CREATION OF CERTAIN APPLICATIONS AND RAINWAY’S PROPRIETARY NETWORK AND PROVIDES FOR THE PAYMENT OF LICENSEE FEES TO RAINWAY. IF APPLICABLE, LICENSEE AGREES TO COMPLY WITH THE PROVISIONS OF THE COMMERCIAL LICENSE. IN THE EVENT OF ANY CONFLICT BETWEEN AN APPLICABLE COMMERCIAL LICENSE WITH YOU OR YOUR ORGANIZATION AND THIS AGREEMENT, THE COMMERCIAL LICENSE WILL CONTROL.

LICENSE

       

1. Grant of License. Conditioned on Licensee’s compliance with this Agreement, Rainway hereby grants Licensee a nonexclusive, nonsublicensable, nontransferable license, to use the SDK internally within Licensor's business and to integrate the SDK into applications created, developed, or licensed to Licensor (the "Licensee App") for testing and non-commercial internal uses during the Term (as defined below) or as otherwise permitted under an active Commercial License.

2. Rights and Limitations.

     (a) Licensee acknowledges and agrees that the SDK is being provided under this Agreement solely for the purposes of an alpha test or as permitted under an active Commercial License.  Licensee agrees to solely use the SDK for Licensee's internal use and will not provide access to the SDK or its components to anyone outside of Licensee either on a standalone basis or as part of a Licensee App without first entering into a Commercial License with Rainway.  Nothing herein shall obligate either Rainway or Licensee to enter into any Commercial License or other further license agreement relating to the SDK.  Without limiting the generality of the foregoing, Licensee shall not, except as expressly authorized under an active Commercial License: (i) use or license the SDK in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the SDK or any associated or accompanying documentation (“Documentation”), in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the SDK, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the SDK to any third party, or otherwise allow any third party to use the SDK for any purpose other than for the benefit of Licensee in accordance with this Agreement; (v) use the SDK or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any other person or entity, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the SDK or Rainway’s networks or systems, or any data or content contained therein or transmitted thereby; (vii) access or search Rainway’s networks or systems (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or features provided by Rainway for use expressly for such purposes; or (viii) use the SDK or Documentation for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the SDK.

     (b) Licensee is solely responsible for the creation, development and use of all Licensee Apps and shall comply with all applicable laws and regulations in connection with Licensee's use of the SDK, including but not limited to privacy laws and export control laws and regulations. Licensee shall notify Rainway immediately upon becoming aware of any unauthorized use of the SDK or any other known or suspected breach of security with respect to the SDK.

3. Payments.  Licensee agrees to pay Rainway those fees, if any, identified by Rainway concurrently when receiving the SDK.  All fees paid under this Agreement are non-cancelable and the sums paid are nonrefundable.  Licensee agrees to pay any sales, value-added or other similar taxes imposed by applicable law for the right to access the SDK.    

4. Maintenance; Updates. Rainway may from time-to-time, and in its exclusive discretion, update the SDK in order to, among other things, correct errors or bugs, improve the performance of the SDK or increase the functionality of the SDK.  Licensee acknowledges that such updates may change or modify certain functions or features of the SDK.  Rainway shall not be liable to Licensee for any specific changes to the features or functionality of the SDK and Licensee's exclusive recourse if it is not satisfied with any update or improvement is to stop using the SDK.  Rainway may, at its option, provide such updates to Rainway at no charge or require the payment of a license fee to access and use the updated SDK.  Nothing herein shall obligate Rainway to provide any maintenance or support for the SDK and nothing herein shall be interpreted as granting Licensee a right to receive any upgrades, patches, enhancements, bug fixes, new versions, or new releases of the SDK.  

5. Feedback.  Licensee agrees to reasonably cooperate with Rainway to provide its feedback concerning the functionality and performance of the SDK.  Licensee further agrees that any suggestions, comments, feedback, ideas, or suggested modifications Licensee or its authorized users provide Rainway concerning the SDK during the Term (collectively "Feedback") shall belong exclusively to Rainway and Rainway will be free to use the same without attribution or accounting to Licensee.

6. Intellectual Property.  Licensee acknowledges and agrees that the SDK is being licensed to Licensee, not sold, and that other than the limited license granted herein, Licensee shall have no right, title, or interest in or to the SDK. As between Rainway and Licensee, all right, title, interest, including without limitation, any patent, trademark, copyright, or other intellectual property rights in and to the SDK, Documentation and Feedback, and all improvements, modifications and derivative works of the foregoing, are owned by and remains with Rainway.  

7. Warranty/Limitation of Liability.

       (a) Disclaimer. THE SDK, DOCUMENTATION AND ANY ASSOCIATED SERVICES PROVIDED BY RAINWAY ARE OFFERED TO LICENSEE "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY.  ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED.  

       (b) Limitation of Liability. THE LIABILITY OF RAINWAY UNDER THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES, AND RAINWAY SHALL NOT HAVE ANY LIABILITY TO LICENSEE FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, DATA, REVENUE OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   UNDER NO CIRCUMSTANCES WILL THE ENTIRE LIABILITY OF RAINWAY OR ITS AFFILIATES WITH RESPECT TO ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED $100.  THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

8. Termination.

       (a) This Agreement will commence upon the date of Licensee's acceptance and shall continue in full force and effect until terminated as provided herein (the "Term").  

       (b) Either party may terminate this Agreement, effective immediately: (i) upon mutual consent; or (ii) upon thirty (30) days prior written notice to the other party.  Licensee may also terminate this Agreement by deleting the SDK (and its associated account with Rainway) and not making any further use of the SDK.  Rainway may terminate this Agreement (including the license granted hereunder) immediately if Licensee violates this Agreement or any applicable Commercial License.

       (c) Upon termination of this Agreement for any reason, Licensee shall immediately discontinue all use of the SDK, and promptly return or destroy (at Rainway’s sole option) all Confidential Information to Rainway.  Thereafter, Licensee shall have no further right, license, or privilege to access, or use the SDK or its components (and Rainway may delete Licensee’s associated account with Rainway).  Those portions of the Agreement that must survive in order to give effect to its essential purpose (including, but not limited to Sections 2-7, 8(c), 9 and 11), will survive termination of this Agreement.

9. Confidentiality.  For purposes of this Agreement, “Confidential Information” means all confidential, non-public or proprietary information disclosed or made available by or on behalf of Rainway to Licensee in connection with this Agreement, including, but not limited to the SDK, Documentation and any other information relating to Rainway’s products, services and technology.  Licensee will hold all Confidential Information in strict confidence, will not use it in any way, commercially or otherwise, except as necessary to exercise its rights under this Agreement, and will not disclose it to any third party without Rainway’s express prior written approval.  Licensee will take all actions reasonably necessary to protect the confidentiality of all Confidential Information including, without limitation, implementing and enforcing procedures to minimize the possibility of unauthorized use or disclosure of Confidential Information.

10. Marketing and Publicity.  Licensee grants Rainway the right to use Licensee's name, mark and/or logo on Rainway's website, and in connection with Rainway's marketing materials to accurately identify Licensee's use of the SDK; provided, however, that such use is made in a manner consistent with any usage guidelines provided to Rainway by Licensee.  Licensee shall retain all rights, title and interest in Licensee's name, mark and/or logo and Rainway's use will inure to the benefit of Licensee.

11. Miscellaneous.

       (a) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.

       (b) No Waiver; Amendment.  Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. Except as set forth in an applicable Commercial License, any amendment of this Agreement must be approved in a writing signed by an authorized representative of Rainway.

       (c) Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without Rainway's express written consent.  Any attempted assignment in violation of this provision shall be void. Rainway may freely assign this Agreement. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties.

       (d) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Washington, without reference to such State's principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of King County, Washington. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the Sale of Goods.

       (e) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

       (f) No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than Rainway and Licensee and their respective successors and permitted assigns.

       (g) Equitable Relief.  Licensee agrees that a breach or threatened breach by Licensee of any of its obligations under Section 2 or Section 9, would cause Rainway irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, Rainway will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

       (h) Export Regulation.  Licensee will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the SDK outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.

       (i) U.S. Government End Users.  The SDK and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations.  To the extent permitted under applicable law, any use, duplication, or disclosure of the SDK or Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.

       (j) Monitoring.  Licensee acknowledges and agrees that Rainway may monitor Licensee’s usage of the SDK via reporting mechanisms and otherwise for purposes of verifying compliance with this Agreement and applicable laws, and in connection with the calculation of fees payable by Licensee or its applicable organization.

       (k) Changes to Agreement.  Rainway may update the terms of this Agreement upon at least fifteen (15) days’ notice to Licensee.  If Licensee does not wish to agree to any such updated terms, Licensee may opt-out from continuing to use the SDK by terminating this Agreement upon written notice to Rainway (or by deleting the SDK and its associated account with Rainway) prior to the effective date of such update.