A. “SDK” means the Makemoji software development kit, and components together with the related user manuals and documentation provided or made available by Emoticon (“Documentation”). The SDK will be delivered to you on such media as determined by Emoticon in its sole discretion within a reasonable amount of time after execution of this Agreement.
B. “API” means the Makemoji application programming interface, and components together with the related user manuals and documentation provided or made available by Emoticon (“Documentation”). The API will be delivered to you on such media as determined by Emoticon in its sole discretion within a reasonable amount of time after execution of this Agreement.
C. “Applications” means customized, mobile-based applications developed by Licensee in accordance with the terms set forth herein as approved by Emoticon.
A. SDK and API. You acknowledge that, as between you and Emoticon, title and full ownership in and to the SDK and API and all trade secrets, copyrights and patent rights and all other intellectual property and proprietary rights in and to the SDK and API remain with Emoticon, whether or not any portion thereof is or may be validly copyrighted or patented. You are granted the limited license rights to access, use copy and display the SDK and API as described in this Agreement. You agree to treat the SDK and API as Emoticon's proprietary information. You will take all reasonable steps to protect the API from disclosure to or use by any unauthorized third-party.
B. Data. As between the parties, Emoticon shall own all rights in and to all user information collected by it in connection with the Applications (“Application Data”).
A. Term. This Agreement shall begin on the Effective Date and continue until terminated pursuant to this Section 5 (the “Term”).
B. Termination. Either party may terminate this Agreement upon ten days prior written notice to the other party. Emoticon may terminate this Agreement immediately upon notice to you of Emoticon’s reasonable determination that you are using the SDK or API in such a manner that could damage or cause injury to the SDK or API.
C. Suspension. Emoticon, in its sole discretion, may suspend your (or, if applicable, an end user’s) access to the SDK or API in the event that Emoticon reasonably believes that you or a third-party accessing the SDK or API through your Applications is engaged in (1) denial of service attacks, spamming, or any activity that may harm Emoticon, its systems or any third-party systems; or (2) any fraudulent or illegal activity or any activity that could result in legal liability to Emoticon or any third-party. Any such suspension may continue until the event causing such suspension has been cured or until Emoticon has received satisfactory assurances that such event will not recur.
D. Effect of Termination. Upon termination of this Agreement for any reason, you will immediately stop using, and either return to Emoticon, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the SDK and API and any Confidential Information (as defined in Section 9) in your possession, and shall certify to Emoticon that such actions have occurred. Those provisions of this Agreement that contemplate a continuing obligation shall survive the termination or expiration of this Agreement and remain in full force and effect, including, but not limited to, the Sections titled “Representations and Warranties”, “Indemnification”, and “Confidentiality”. Except in the event that this Agreement is terminated or suspended by Emoticon under Section 5, and to the extent that Applications created hereunder prior to the termination of this Agreement continue to be accessed and used by end users beyond the termination of this Agreement, the applicable terms of this Agreement shall remain in full force and effect in connection with and for the duration of such access and use.
A. You represent, warrant and covenant that (i) you have the right, power and authority to enter into this Agreement; (ii) you shall implement and maintain security measures consistent with applicable laws, rules and regulations and industry to prevent unauthorized access to or disclosure of the SDK or API, any Confidential Information, and other information related to your use of the SDK or API; (iii) the Applications will comply with all applicable laws, rules and regulations; and (iv) any and all materials provided by you pursuant to this Agreement and the Applications, shall not infringe or violate any third-party rights, including intellectual property rights and rights of privacy or publicity.
B. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SDK AND API IS OFFERED “AS IS,” AND EMOTICON GRANTS YOU AND YOU RECEIVE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR OTHERWISE. EMOTICON SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EMOTICON DOES NOT WARRANT THAT THE OPERATION OF THE SDK OR API WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, SOFTWARE OR HARDWARE, OR THAT IT WILL NOT CAUSE ANY LOSS OR CORRUPTION OF DATA.
A. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMOTICON WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR CONTENT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. LIMITATION OF DAMAGES. EMOTICON’S CUMULATIVE, AGGREGATE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES UNDER AISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED [$10,000.00].
A. Confidential Information. You may from time to time, receive from Emoticon or gain access to information of a confidential nature including, but not limited to, the SDK or API, product information, data, pricing, financial information, user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which Emoticon reasonably communicated, or you should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute Confidential Information. For the avoidance of doubt, Emoticon’s Confidential Information includes the Application Data.
B. Obligations; Exclusions. You agree, for yourself and your agents and employees, that you will not publish, disclose or otherwise divulge or use for your own purposes (other than as expressly permitted under this Agreement) any Confidential Information of Emoticon furnished to you by such Emoticon without the prior written approval of Emoticon in each instance. You agree to use at least the same level of care to maintain the Confidential Information of Emoticon as you use to maintain the confidentiality of your own non-public information, and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that you can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of your own, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in your possession at the time it was received by you free from any obligation of confidentiality, (iii) was lawfully received by you from a third-party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) was independently developed by the you or your independent contractors who did not have access to the Emoticon’s Confidential Information. In the event that the you are required to disclose Confidential Information in accordance with judicial or governmental order or requirement, you shall promptly notify Emoticon in order to allow Emoticon to contest the order or requirement or seek confidential treatment for such information.
C. Destruction of Confidential Information. As soon as possible after any Confidential Information is no longer needed by the you to perform your obligations hereunder, you shall immediately return the Confidential Information, and all copies thereof in any form, in your possession or control, or securely destroy the same and certify such destruction in writing.