1. Overview.
1.1. This Agreement between you and Synamedia states the terms that govern your use of the Developer Tools.
1.2. Certain capitalized terms used in this Agreement are defined in Section 3 below, and elsewhere in the body of this Agreement.
1.3. This Agreement does not grant you any rights to publish Applications on the Platform. This Agreement does not obligate Synamedia to publish Applications on the Platform. To publish Applications on the Platform you must execute a separate written content applications agreement made available to you by Synamedia ("Synamedia Senza Content Applications Agreement").
2. Accepting this Agreement.
2.1. By accessing or by using the Developer Tools, you accept and agree to be bound by the terms of this Agreement.
2.2. If you are entering into this Agreement on behalf of a company or other entity, you represent and warrant that you have the full authority to legally bind such company or entity to the terms and conditions of this Agreement.
2.3. You may not use the Developer Tools if you do not agree to this Agreement.
3. Definitions.
3.1. Affiliate: an entity controlling, controlled by, or under common control with Synamedia, where "control" refers to direct or indirect ownership or control of at least fifty percent (50%) of the voting shares or securities of the controlled entity.
3.2. Agreement: this Developer Tools Licence Agreement, as may be amended from time to time.
3.3. Application: a software program developed by You for distribution via the Platform.
3.4. Authorized Developers: any third-party contractors or agents engaged by you in the development of your Applications.
3.5. Developer e-mail Address: the e-mail address associated with your enrolment in the Developer Program.
3.6. Developer Program: a program that Synamedia makes available to developers and content providers in order to develop, manage and distribute for commercial gain Applications and content via the Platform.
3.7. Developer Tools: any tools (including associated libraries and documentation) made available to you from time to time through and pursuant to the Developer Program to develop, publish or operate Applications or publish content via the Platform. The Developer Tools may include open-source software, sample code and links to third party tools.
3.8. Device: any product or device authorized by Synamedia to access or use Applications.
3.9. Law: all applicable laws, rules, regulations orders and other requirements of governmental agencies, each as may be implemented and/or amended from time to time.
3.10. Platform: the software/service developed by Synamedia as may be updated or changed from time to time.
3.11. Synamedia: Synamedia Limited together with its Affiliates as well as any successors and/or assigns.
3.12. Synamedia Cloud Portal: means the website that Synamedia makes available to You to administer Your participation in the Developer Program, as notified to You in writing by Synamedia from time to time.
3.13. You, you or your, Your: the person, company or other entity that is entering into this Agreement.
4. Licence Grant.
4.1. Synamedia grants to You a personal, limited, fully revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, royalty-free licence during the term of this Agreement to use the Developer Tools to develop one or more Applications for the Platform, and for no other purpose. Synamedia reserves the right to charge You a nominal fee of $100 (one hundred US dollars) for accessing the Developer Tools made available as part of the Developer Program.
4.2. You may test your Applications on an internal, non-public and non-commercial basis, as agreed with Synamedia in writing from time to time.
4.3. 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 Developer Tools.
4.4. Maintenance and support for the Developer Tools may be supplied at the discretion of Synamedia and without any warranty.
4.5. Any open-source software or other third party tools included in the Developer Tools will be solely licensed under the applicable open-source / third - party licences and You undertake to comply at all times with the terms of such licenses. Synamedia does not grant any rights or licenses, whether by implication, estoppel or otherwise, with respect to any open-source or third-party software or tools.
4.6. Under this Agreement, you do not have the right to distribute, sell, deploy, publicly display or perform, sublicense, lease, rent, loan, give, assign, or transfer to third parties the Developer Tools, in whole or in part, or any Applications created using the Developer Tools. Any such rights, if granted, will be the subject of a separate written agreement between the parties. All other rights are reserved.
5. Ownership.
5.1. Synamedia or its licensors shall own at all times, all right, title and interest in and to the Developer Tools. Any feedback or ideas related to the Developer Tools will be confidential and solely owned by Synamedia and You will complete all necessary documents at the expense of Synamedia to confirm such ownership.
5.2 Synamedia may change or discontinue any or all of the Developer Tools at any time without notice without any obligations as to backwards compatibility with previous versions. It is Your sole responsibility to ensure that You are using the current version.
7. Your use of the Developer Tools.
7.1. You will comply with all Law and supporting documentation/notices in your use of the Developer Tools and in the development of your Application.
7.2. You will not engage in any activity using or related to the Developer Tools that infringes, violates, or misappropriates the rights of Synamedia or any third Party.
7.3. Nothing in this Agreement permits you to reverse engineer, decompile, disassemble or in any way appropriate the trade secrets or the proprietary content of the Developer Tools or Platform.
7.4. You will not incorporate, combine, or distribute any portion of the Developer Tools with software that requires as a condition of use, modification, and/or distribution of such software that your Applications or the Developer Tools be: (a) disclosed or distributed in source code form; (b) licensed for the purposes of making derivative works; or (c) redistributable free of charge.
7.5. You will use all the latest software for ensuring that the Applications do not contain, viruses, malware or other malicious code.
7.6. You will not create Applications that: (a) download or install executable code; (b) enable search functionalities across other Applications; or (c) enable the installation of other Applications.
7.7. The Developer Tools shall only be used for the purposes of developing an Application for deployment on the Platform and not for the purposes of enabling access to other platforms or stores.
7.8. You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by You and Your Authorized Developers in connection with the Applications, and Your related development and distribution efforts, including, but not limited to, any related development efforts, network and server equipment, Internet service(s), or any other hardware, software or services used by You in connection with Your use of the Developer Tools or any integration with the Platform.
7.9. You are solely responsible for the security of your Application(s), and for any consequences arising from your Application(s)’ lack of security.
7.10 In processing any personal data (such as login credentials You or Your Authorized Developer use to access the Developer Program), Synamedia will comply with the Synamedia Privacy Policy, which is available at https://www.synamedia.com/privacy-policy/ and incorporated herein by reference. The Synamedia Privacy Policy is subject to change at Synamedia’s discretion; however, Synamedia policy changes will not result in a material reduction in the level of protection provided for Your personal data.
8. Changes to this Agreement.
8.1 Synamedia reserves the right to make changes to this Agreement from time to time in its sole discretion and will make the updated version available as part of the Synamedia Cloud Portal. The changes will be effective from the date the latest version is posted to the Synamedia Cloud Portal or otherwise notified to you and will apply to You as well as your Application(s) irrespective of actual knowledge.
9. Terminating this Agreement.
9.1. Where no Applications have been distributed on the Platform, you may terminate this Agreement at any time by ceasing your use of the Developer Tools. Should Applications be published on the Platform, you may terminate this Agreement where the Synamedia Senza Content Applications Agreement has been terminated as well as ceasing your use of the Developer Tools.
9.2. Synamedia may terminate this Agreement at any time upon notice with immediate effect or, if applicable, upon providing the prior written notice required by Law, if (a) you breach this Agreement, (b) where required to do so by Law, or (c) in its discretion by notice in writing to You.
9.3. This Agreement will automatically terminate upon the termination of the Synamedia Senza Content Applications Agreement.
9.4. Upon the expiration or termination of this Agreement, all rights and licences granted under this Agreement will immediately terminate together with the Synamedia Senza Content Applications Agreement.
10. Your Additional Representations, Undertakings and Warranties.
10.1. You represent, undertake and warrant that: (a) You and Your authorized representative have all right, power and authority to enter into this Agreement; (b) You have obtained any and all necessary rights, licences and approvals to perform your covenants and agreements set forth in this Agreement; (c) You will not act in any manner that conflicts or interferes with any existing commitment or obligation You may have; and (d) no agreement previously entered into by You will interfere with Your performance of your obligations under this Agreement.
10.2. You undertake that: (a) You will notify and provide Synamedia in writing with the details of any Authorized Developers; (b) You will be responsible for and primarily liable for your Authorized Developers’ use of the Developer Tools, and their compliance (by act or omission) with the terms of this Agreement; and (c) You will inform Your Authorized Developers of the terms and conditions of this Agreement to ensure their compliance herewith.
11. DISCLAIMER OF WARRANTIES. THE DEVELOPER TOOLS ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE DEVELOPER TOOLS, AND ANY MATERIAL OBTAINED THROUGH USE OF THE DEVELOPER PROGRAM, IS AT YOUR SOLE RISK AND EXPENSE, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSSES THAT RESULT FROM SUCH USE, INCLUDING DAMAGE TO COMPUTER SYSTEMS OR OTHER DEVICES, OR LOSS OF DATA. SYNAMEDIA AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR THAT PARTY’S AUTHORIZED REPRESENTATIVE(S) OR AFFILIATE(S) WILL CREATE A WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THIS DISCLAIMER APPLIES EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY. SYNAMEDIA AND ITS AFFILIATES WILL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY DAMAGES WHATSOEVER (INCLUDING DIRECT DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, AND INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS DISRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES), NO MATTER HOW SUCH DAMAGES MAY HAVE BEEN CAUSED, AND EVEN IF SYNAMEDIA OR ITS AFFILIATES (OR ITS OR THEIR SUBCONTRACTORS OR REPRESENTATIVES) HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. SYNAMEDIA’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO SYNAMEDIA UNDER THE SYNAMEDIA SENZA CONTENT APPLICATIONS AGREEMENT FOR THE SPECIFIC PUBLISHED APPLICATION GIVING RISE TO THE LIABILITY IN THE THREE (3) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 12 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW, THIS SHALL NOT EXCLUDE ANY DAMAGES OR LIMIT ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
13. Indemnification.
13.1. To the fullest extent permitted by Law, You agree to defend and/or settle any demand, action, suit or proceeding brought by any third party ("Action") against Synamedia or its Affiliates, each of its or their respective successors and assigns, and the past and present directors, officers, employees, contractors and agents of each of the foregoing (each an "Indemnified Party") and to indemnify and hold harmless the Indemnified Parties from and against any and all losses, liabilities, damages, fines, expenses and costs (including reasonable attorneys’ fees, disbursements and court and administrative costs) resulting from such Action to the extent that such Action is based on a claim: (a) arising from your breach of this Agreement or of any certification, covenant, representation or warranty made by you pursuant to this Agreement; (b) that Your Application(s) (including the features, services or functionalities accessed via your Application(s)) infringe any third party intellectual property rights; (c) that the content and materials accessed via your Application(s) are unlawful, defamatory, invasive of another’s privacy, right of publicity, or any other third party right; (d) that Your Application(s) enable piracy of content, circumvention of rights management, privacy or security controls, bypassing of a subscription or any type of fee-based access requirement, violation of terms of service, hacking/cracking or other illegal or disruptive activities on any Device; (e) arising from Your receipt, collection, storage, use or disclosure of information about users; and/or (f) otherwise related to Your use of the Developer Tools, your Application(s) or development of your Application(s).
13.2. If any Indemnified Party is entitled to indemnification under Section 13.1, it will give You prompt written notice of the applicable Action (provided, however, that any delay in notification will not relieve You of your obligations under this Agreement except to the extent that the delay actually impairs your ability to defend) and cooperate reasonably with You, at your expense, in connection with the defence and settlement of the Action. You will, at Your own expense, have sole control of the defence or settlement of the Action; provided, however, that in settling any Action, you will not make any admission on behalf of any Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by or the imposition of any obligation upon an Indemnified Party without the prior written approval from the Indemnified Party in its sole discretion. The Indemnified Party will have the right to participate fully, at its own expense and with counsel of its own choosing, in the defence of any Action.
14. No Publicity. You will not issue any press release or public communication concerning the subject matter of this Agreement, or otherwise announce your use of the Developer Tools or your development of Application(s), without the prior written approval of Synamedia.
15. General Legal Terms.
15.1. Assignment. You may not transfer or assign (including by change of control), in whole or in part, this Agreement, or any rights, duties, obligations or liabilities under this Agreement, whether by contract, operation of law or otherwise, without Synamedia’s prior written approval. Synamedia and its Affiliates may assign, transfer, or delegate all or any of its or their rights, duties, obligations, or liabilities under this Agreement, in whole or in part, whether by contract, operation of law or otherwise, without Your prior written approval.
15.2. Relationship of Parties. This Agreement will not be construed as creating any agency relationship, partnership, joint venture, fiduciary duty, or any other form of legal association between you and Synamedia.
15.3. Remedies Cumulative. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties or otherwise.
15.4. Notices.
15.4.1. All notices relating to this Agreement will be in writing. Electronic notices are deemed "in writing".
15.4.2. Synamedia may provide notices relating to this Agreement to You through your Developer Email Address, and/or by posting notices in the Synamedia Cloud Portal. You consent to receive notices relating to this Agreement as set forth in the preceding sentence, and agree that such notices satisfy any legal communication requirements. Notices provided via email will be deemed given to You upon sending. Notices provided by posting through the Synamedia Cloud Portal will be deemed given to you by Synamedia upon posting.
15.4.3. Notices may also be sent by either party to their given addresses via personal delivery, overnight carrier or mail. Such notices will be deemed given: (a) when delivered personally; or (b) 3 business days after having been sent by commercial overnight carrier with written proof of delivery.
15.5. Severability. If any provision of this Agreement is or becomes void or unenforceable, this shall not affect the validity or enforceability of any other provision of this Agreement. If any such provision would be valid and enforceable if some part of such provision were deleted, such provision shall apply with such deletion as may be necessary to make it valid and enforceable.
15.6. Dispute Resolution; Governing Law. Any litigation or other dispute resolution arising out of or relating to this Agreement, will be subject to the laws of England and Wales. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be determined by the arbitrator. The language to be used in the arbitral proceedings shall be English. The United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded, will not govern this Agreement.
15.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter covered by this Agreement. This Agreement supersedes all other agreements and understandings between the parties concerning the same subject matter. Except as expressly permitted by this Agreement, no amendment or modification to this Agreement will be binding unless both parties sign it. In the event of a conflict between, on the one hand, this Agreement, and on the other hand, and the Synamedia Senza Content Applications Agreement, then the Synamedia Senza Content Applications Agreement will prevail.
15.8. Confidentiality.
15.8.1. You agree that You and Your employees and agents will maintain in confidence, will not disclose to any third party without Synamedia’s prior written consent in each case, and will treat with the same degree of care as you treat your own confidential and proprietary information (but no less than a reasonable degree of care) and in compliance with Laws, this Agreement and all other all technology, data, summaries, reports or information of all kinds, whether oral or written, acquired or devised or developed in any manner from Synamedia personnel, files, documentation or customers, whether or not such information is identified orally or in writing as confidential or proprietary ("Confidential Information").
15.8.2. You will not reveal Confidential Information to any third party except: (a) at the prior written direction of Synamedia; (b) to the extent necessary to comply with the law or the valid order of a court of competent jurisdiction, in which event You will so notify Synamedia in writing as promptly as practicable (and, if possible, prior to making any disclosure), seek confidential treatment of such information, and provide Synamedia with reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure; (c) as part of Your normal reporting or review procedure to Your parent company, your auditors and Your attorneys provided that such parent company, auditors and attorneys agree to be bound by the confidentiality provisions and use restrictions of this Agreement; (d) to contractors engaged by You who reasonably need to know Confidential Information to perform such contracted functions in furtherance of Your obligations or rights under this Agreement, provided that such contractors agree to be bound by the confidentiality provisions and use restrictions of this Agreement; and (e) to enforce any of Your rights under this Agreement, provided that it shall be filed under seal. You further agree that You are responsible to Synamedia for any action or failure to act that would constitute a breach or violation of this Section by any person(s) to whom you have disclosed Confidential Information, and You agree to take all reasonable measures (including court proceedings) to restrain such person(s) from disclosure or improper use of the Confidential Information. You further agree that You and the person(s) to whom You disclose Confidential Information will not use such Confidential Information for any reason or purpose other than to perform Your obligations under this Agreement.
15.8.3. Confidential Information will not include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Synamedia; (ii) becomes publicly known and made generally available after disclosure by Synamedia to you through no action or inaction by you; (iii) is already in Your possession at the time of disclosure by Synamedia as shown by documents and other competent evidence in Your possession immediately prior to the time of disclosure; (iv) is obtained by You from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by You without use of or reference to Confidential Information, as shown by documents and other competent evidence in Your possession.
15.9. Subcontractors. Subject to Section 10.2, each party may engage consultants, subcontractors, third party service providers or agents in connection with that party’s exercise of its rights and obligations under this Agreement; provided that each party will be liable for any noncompliance with the terms of this Agreement by any of its consultants, subcontractors, third party service providers or agents.