Subject to your ("Licensee") full compliance with all of Terms of this agreement ("Agreement"), 9elements GmbH ("9elements") grants Licensee a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the SDK within Licensee’s mobile or website application (“App”). Licensee may not install or use the SDK for any other purpose without 9elements prior written consent.
Licensee may not, without prior written consent from 9elements, redistribute the SDK or Modifications other than by including the SDK or a portion thereof within the Licensee's own product, which must have substantially different functionality than the SDK or Modifications and must not allow any third party to use the SDK or Modifications in their own products. You are explicitly not allowed to redistribute the SDK or Modifications as part of any product that can be described as a photo editor SDK or library. You are not allowed to redistribute any part of the SDK documentation. You may not change or remove the copyright notice from any of the files included in the SDK or Modifications. You may not redistribute the SDK on any server which is not directly under Your control.
Licensee shall not use the SDK in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories.
As between 9elements and Licensee, the SDK and all intellectual property rights in and to the SDK are and shall at all times remain the sole and exclusive property of 9elements and are protected by applicable intellectual property laws and treaties. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and 9elements (and its licensors) shall retain all right, title and interest in and to the SDK and the 9elements logos.
Except as expressly and unambiguously authorized under this Agreement, Licensee may not (i) sell, transfer, assign, or sublicense; (ii) otherwise use the SDK on behalf of any third party.
THE SDK IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, 9ELEMENTS AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SDK, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, 9ELEMENTS DISCLAIMS ANY WARRANTY THAT LICENSEE'S USE OF THE SDK WILL BE UNINTERRUPTED OR ERROR FREE.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL 9ELEMENTS OR ITS VENDORS, BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SDK, EVEN IF 9elements HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, 9ELEMENTS DISCLAIMS ALL LIABILITY OF ANY KIND OF 9ELEMENTS'S VENDORS.
Each party will indemnify and hold harmless the other party from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys' fees) arising from Licensee's use of the SDK provided such use is in accordance with the terms of this Agreement. The Supplier shall contest at his own cost and risk any thirdparty claims arising from the infringement of intellectual property rights. You shall advise the Supplier of such claims without delay and in writing.
9elements or a certified auditor acting on 9elements' behalf, may, upon its reasonable request and at its expense, audit the Licensee with respect to the use of the Software. Such audit may be conducted by mail, electronic means or through an in-person visit to Your place of business. Any such in-person audit shall be conducted during regular business hours at The Licensee's facilities and shall not unreasonably interfere with the Licensee's business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that the Licensee is using the Software in a way that is in material violation of the terms of the License Agreement, then the Licensee shall pay Our reasonable costs of conducting the audit. In the case of a material violation, the Licensee agrees to pay Us any amounts owing that are attributable to the unauthorized use. In the alternative, 9elements reserves the right, at the sole option, to terminate the licenses for the Software.
The Software license fees will be due and payable in full as set forth in the applicable invoice or at the time of purchase. If the Software does not function properly within two weeks of purchase, please contact us within those two weeks for a refund. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of 9elements).
As compensation for its services under this Agreement, You shall pay to 9elements the amounts set forth as ordered by Customer in the Payment Form. There will be no refunds or credits for partial months of service, upgrades, downgrades, or unused months. Fees listed do not include any applicable sales, use or excise. You shall be responsible for payment of all such fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Photo Editor SDK.
Package upgrades, downgrades, or cancellations must be processed within the Photo Editor Administrative Portal. To ensure upgrades, downgrades, or cancellations are processed for an upcoming Service Period, requests must be submitted before the end of the current month (using Eastern Standard Time) to avoid billing of fees for the next month. Your requested upgrades, downgrades and cancellations shall constitute an Order Form once confirmed by 9elements.
You must maintain a payment method on file within the Photo Editor Administration Portal. You authorize 9elements to charge your payment method on file for all services purchased including Usage fees. You authorize 9elements to use a third party to process payments and consents to the disclosure of your payment information to such third party.
9elements has the right to modify the Photo Editor Fees and other charges upon written notice to You, which will be provided no less than thirty (30) days prior to the new charges going into effect.
9elements will send billing correspondence to the email address entered as billing contact by You in the Photo Editor Administration Portal.
In the event of a good faith dispute as to the calculation of a charge, You shall promptly give written notice to 9elements stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by 9elements of such partial payment shall not constitute a waiver of payment in full by 9elements of the disputed amount. You agree to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of 9elements in connection with the collection of any unpaid amounts due to 9elements hereunder.
Any undisputed amount due to 9elements under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by You which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle 9elements to suspend the SDK license and all further Photo Editor Services without notice at 9elements sole discretion.
Upon the expiration of any term under this Agreement, (a) all Software updates and services pursuant to the license shall cease, (b) you may not use the Software on any additional Services, and (c) any new integration of the Software shall require the purchase of a new license subscription.
Subject to the terms and conditions of this Agreement, as set forth in your invoice, support and maintenance services may be included with the purchase of your license subscription.
This Agreement is effective as of the Delivery of the Software and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). For clarification, the term of your license under this Agreement may be limited for Evaluation Version, or designated as a fixed-term license in the Invoice, and shall be specified at your time of purchase. Either party may terminate this Agreement (including all related Invoices) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided that 9elements may terminate this Agreement immediately upon any breach of Section 2 and 4 or if you exceed any other restrictions contained in Section 1, unless otherwise specified in this agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Upon any termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof. It is the licensee’s responsibility to ensure that this agreement is properly terminated. An email requesting termination is considered a proper cancellation. Your termination will be effective immediately once initiated. If terminated, the license will expire at the end of the yearly period. You will not be charged for the next yearly period.
If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the SDK are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The SDK are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the SDK by the Government shall be governed solely by the terms of this Agreement.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the SDK in violation of any such restrictions, laws or regulations. By downloading or using the SDK, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
The license granted herein applies only to the version of the Software available when purchased in connection with the terms of this License Agreement. Any previous or subsequent license granted to You for use of the Software shall be governed by the terms and conditions of the agreement entered in connection with purchase of that version of the Software. You agree that you will comply with all applicable laws and regulations with respect to the Software, including without limitation all export and re-export control laws and regulations.
While redistributing the Software or Modifications thereof, You may choose to offer acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License Agreement. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on our behalf. You agree to indemnify, defend, and hold Us harmless from and against any liability incurred by, or claims asserted against, Us (i) by reason of Your accepting any such support, warranty, indemnity or additional liability; or (ii) arising out of the use, reproduction or distribution of Your Application, except to the extent such claim is solely based on the inclusion of the Software therein.
You agree to be identified as a customer of ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in our marketing materials and web site.
You may not assign this License Agreement without Our prior written consent, which will not be unreasonably withheld. This License Agreement will inure to the benefit of Our successors and assigns.
You acknowledge that this License Agreement is complete and is the exclusive representation of our agreement. No oral or written information given by Us or on our behalf shall create a warranty or collateral contract, or in any way increase the scope of this License Agreement in any way, and You may not rely on any such oral or written information. No term or condition contained in any purchase order shall apply unless expressly accepted by Us in writing,
There are no implied licenses or other implied rights granted under this License Agreement, and all rights, save for those expressly granted hereunder, shall remain with Us and our licensors. In addition, no licenses or immunities are granted to the combination of the Software and/or Modifications, as applicable, with any other software or hardware not delivered by Us to You under this License Agreement.
If any provision in this License Agreement shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this License Agreement shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this License Agreement shall remain in effect.
This License Agreement may be modified only by a written instrument signed by an authorized representative of each party.