This Firebolt SDK Terms of Service (“Terms”) are between RDK Management, LLC, a Delaware limited liability company (“RDKM”), having its principal place of business at 1701 John F. Kennedy Blvd., Philadelphia, PA 19103, and you.
PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING THE LICENSED MATERIALS
(DEFINED BELOW). THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND RDKM.
In order to access and use the Licensed Materials, you must first agree to these Terms by checking
the box next to “I have read, understood, and accept the Terms.” If you do not agree to these
Terms, you are not permitted to access or use the Licensed Materials.
You acknowledge and agree that if you are accepting these Terms on behalf of your employer, company, agency, or other legal entity identified in your registration form, you have the capacity to act as that entity’s authorized legal representative.
1. PURPOSE; REGISTRATION; LICENSE GRANT AND RESTRICTIONS.
1.1 Purpose. These Terms govern the use of the RDK native environment software development kit, as updated from time to time in RDKM’s sole discretion (“SDK”), any documentation and related materials provided to you together with the SDK (“Related Materials” and collectively with the SDK, the “Licensed Materials”). The SDK is made available by RDKM to assist developers to develop applications for the RDK platform (“Applications”).
1.2 Registration. You will be required to provide various information to access the Licensed Materials. RDKM may use this information to communicate with you. You represent that all information provided to RDKM will be accurate, timely, and complete, and will ensure that the information remains current.
1.3 License Grant. Subject to the terms and conditions of these Terms, and subject to your compliance with any additional developer guidelines made available on wiki.rdkcentral.com (“Website”) or otherwise provided by RDKM to you (“Guidelines”), RDKM grants you an nonexclusive, non-transferable, non-sublicensable, royalty-free, revocable license during the Term (defined below) to: (a) access and use the SDK; (b) copy, make derivative works of, and use the Related Materials; and (c) to the extent that any of the Related Materials are executable software, install such executable software on compatible platforms (as further explained in the Guidelines), in any case solely from computers, tablets, and mobile devices that are owned or controlled by you. This license is granted solely for the purpose of developing and testing Applications (“Purpose”).
1.4 Restrictions. Except as provided for in these Terms, you may not: (a) modify, translate, reverse engineer, decompile, or disassemble the Licensed Materials or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in Licensed Materials, including, without limitation, any such mechanism used to restrict or control the functionality of the SDK or other Licensed Materials; or (ii) derive the source code or the underlying ideas, algorithms, structure or organization form of the Licensed Materials; (b) use or reproduce the Licensed Materials for any reason other than the Purpose; (c) sell, assign, license, disclose, or otherwise transfer or make available the Licensed Materials, any copies of the Licensed Materials, or any information derived from the Licensed Materials in any form to any third parties, with the exception that Licensed Materials may be disclosed, transferred or made available to your Personnel as provided in Section 4 below, or in accordance with the terms of any Public Software license to which such Licensed Technology is subject, per Section 1.5 below; (d) take any action or enter into any agreement that would result in any contractual requirement that RDKM or you make available to a third party any of the source code of the SDK (excluding any code that is Public Software (as defined in Section 1.5); or (e) remove or alter any proprietary notices or marks on the Licensed Materials.
1.5 Public Software. The SDK may include Public Software (as defined below). The Public Software is governed by the terms and conditions of the applicable Public Software license. In the event of a conflict or inconsistency between the applicable Public Software license and these Terms, the terms and conditions of the applicable Public Software license shall govern as to such Public Software only. The applicable Public Software notices for the SDK are contained within the SDK. As used herein, “Public Software” means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Eclipse Public License; (g) the BSD License; and/or (h) the Apache License.
1.6 Proprietary Third Party Materials. The Licensed Materials may contain proprietary third party software or materials (collectively, “Proprietary Third Party Materials”) the access to and use of which is governed by third party software licenses or additional terms and conditions (“Proprietary Third Party License Terms”). You acknowledge that the Proprietary Third Party Materials are not owned by RDKM and may be subject to additional restrictions imposed by their licensors. Additional restrictions for all such Proprietary Third Party Materials will be identified in the Related Materials. In the event of a conflict or inconsistency between the Proprietary Third Party License Terms and these Terms, the terms and conditions of the Proprietary Third Party License Terms shall govern as to such applicable Proprietary Third Party Materials only.
2. UPDATES; SUPPORT
2.1 Updates. You acknowledge that RDKM may update or modify the SDK and Licensed Materials from time to time and that such updates and modifications may adversely affect the manner in which you access or communicate with the SDK and Licensed Materials.
2.2 Support. RDKM is not obligated to provide any technical or other support for the SDK or Licensed Materials to you.
3. TERM; TERMINATION.
3.1 Term. These Terms are effective as of the date of your acceptance, and will remain effective until terminated as set forth in Section 3.2 (“Term“).
3.2 Termination. RDKM may terminate these Terms at any time, effective immediately, by providing written notice to you (via email or posting a notice on the Website). RDKM reserves the right to discontinue offering the Licensed Materials or to modify the Licensed Materials at any time in its sole discretion. If you are dissatisfied with any aspect of the Licensed Materials, your sole and exclusive remedy is to cease using them. Notwithstanding anything to the contrary herein, RDKM may also, in its sole discretion, terminate or suspend access to the Licensed Materials to you or any end user at any time. Upon termination, you will stop using the SDK and destroy all copies of the Related Materials (including all derivatives thereof) and Confidential Information (defined below) in your possession, custody, or control. Sections 3-11 will survive the termination of these Terms. These Terms will terminate immediately and without notice if you breach of the Guidelines or any term or condition herein.
4. CONFIDENTIALITY
4.1 Confidential Information.
You agree that these Terms and the Licensed Materials, and all other information derived from using the Licensed Materials, and any other documents provided to you by RDKM relating to your use of the Licensed Materials are “RDKM Confidential Information.” Notwithstanding the foregoing, RDKM Confidential Information does not include: (a) information that is generally available to the public through no fault or breach of these Terms by you; (b) information that is generally made available to the public by RDKM; (c) information that is independently developed by you without the use of or reference to RDKM Confidential Information; (d) information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation; or (e) information that was known to your or in your possessions, without limitation on use or disclosure, prior to receipt from RDKM.
4.2 Restrictions. You agree to protect RDKM Confidential Information using at least the same degree of care that you use to protect your own confidential information of similar importance, but no less than a reasonable degree of care. You agree to use RDKM Confidential Information solely for the Purpose. You agree not to disclose RDKM Confidential Information to anyone other than your employees, contractors, consultants and/or agents (collectively, “Personnel”), solely to further the Purpose. You may disclose RDKM Confidential Information to the extent required by law, provided that you take reasonable steps to notify RDKM of such requirement before disclosing the RDKM Confidential Information and to obtain protective treatment of the RDKM Confidential Information. You acknowledge that damages for improper disclosure of RDKM Confidential Information are irreparable; therefore, RDKM is entitled to equitable relief, including injunction and preliminary injunction, in addition to all other remedies. You represent that such Personnel, either as a condition of employment or in order to obtain RDKM Confidential Information, are subject to non-disclosure obligations at least as restrictive as those contained herein.
4.3 Publicity. You shall not use RDKM’s marks or refer to RDKM directly or indirectly in any media release, public announcement, or public disclosure relating to these Terms or its subject matter, or in any promotional or marketing material, lists, business presentation, or in a way that suggests your Applications come from or are endorsed by RDKM, without the prior written consent of RDKM for each such use or release.
5. OWNERSHIP; FEEDBACK.
5.1 Ownership. As between you and RDKM, RDKM owns all right, title and interest in and to the Licensed Materials, including but not limited to all intellectual property rights therein. Any rights not expressly granted herein are withheld.
5.2 Feedback. You may, at your sole discretion, provide RDKM with comments concerning the Licensed Materials and your evaluation or use thereof, including bug reports, evaluations, proposed product integrations (and associated metrics and learnings) (“Feedback”). In the event that you provide RDKM with Feedback, you agree that RDKM and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, transmit, license and sublicense, incorporate and otherwise use the Feedback, including derivative works thereto, for any and all commercial and non-commercial purposes in any media now known or later developed with no obligation of any kind to you.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1 Your Representations and Warranties. You represent and warrant that: (a) you have all right, power, and authority necessary to enter into these Terms and perform your obligations hereunder; (b) the execution of these Terms by you and the performance by you of your obligations and duties hereunder do not and will not violate any agreement to which you are a party or by which you are otherwise bound, including your charter documents, and will comply with all laws, rules, and regulations; and (c) when executed and delivered, these Terms will constitute its legal, valid and binding obligation enforceable against it in accordance with its terms.
6.2 Disclaimer. YOU AGREE THAT YOUR USE OF THE LICENSED MATERIALS IS AT YOUR SOLE RISK. THERE MAY BE INTERRUPTIONS, DELAYS, OMISSIONS, INACCURACIES, OR OTHER PROBLEMS WITH THE LICENSED MATERIALS. IF YOU RELY ON THE LICENSED MATERIALS, YOU DO SO AT YOUR OWN RISK. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY LICENSED MATERIALS. THE LICENSED MATERIALS ARE PROVIDED TO YOU “AS IS”, “WITH ALL FAULTS,” AND “AS AVAILABLE.” RDKM AND ITS AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, USEFULNESS, TIMELINESS, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE LICENSED MATERIALS, NOR DO THEY GUARANTEE THAT THE LICENSED MATERIALS WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR THAT THE LICENSED MATERIALS ACTUALLY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL RDKM (INCLUDING ITS PARENTS, SUBSIDIARIES, AND AFFILIATES) OR ITS AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES ARISING OUT OF ANY USE OR MISUSE OF THE LICENSED MATERIALS, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF THESE DAMAGES, REGARDLESS OF THE FORM OR CAUSE OF ACTION INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, AND OTHER TORT ACTIONS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. IN THESE STATES, THE LIABILITY OF RDKM AND ITS AGENTS AND LICENSORS IS LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE STATE LAW. YOU AGREE THAT RDKM’S (INCLUDING ITS PARENTS’, SUBSIDIARIES’, AND AFFILIATES) AND ITS AGENTS’ AND LICENSORS’ LIABILITY, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY CONNECTED TO THE LICENSED MATERIALS SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR THE AMOUNT PAID BY YOU TO RDKM FOR USE OF THE LICENSED MATERIALS.
8. INDEMNIFICATION.
You agree to indemnify, defend, and hold harmless RDKM (including its parents, subsidiaries, and affiliates, and all of their respective officers, directors, employees, agents, licensors, suppliers, and any third-party information providers) against all claims, and all losses, expenses, damages, and costs (including reasonable attorney fees) resulting from: (a) your breach of these Terms; or (b) your use of the Licensed Materials. RDKM reserves the right, at its election to assume the exclusive defence and control of any matter subject to indemnification by you and you agree that you should not settle any such matter without RDKM’s prior written consent and you shall cooperate with RDKM in connection
with RDKM’s defense thereof.
9. EXPORT LAWS.
The Licensed Materials are subject to United States export laws and regulations. You expressly agree to comply with all United States, and international export laws and regulations, which include restrictions on destinations, end users, and end use. You further expressly agree not to use the Licensed Materials in any way that violates any provision of such laws or their implementing regulations. In particular, but without limitation, the Licensed Materials may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Licensed Materials, you represent and warrant that you are not located in any such country or on any such list.
10. GOVERNING LAW.
These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to or application of conflicts of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All claims arising out of or relating to these Terms will be brought exclusively in the federal or state courts of Philadelphia County, Pennsylvania, USA, and you consent to personal jurisdiction in those courts.
11. MISCELLANEOUS.
These Terms constitute the entire agreement among the parties with respect to the subject matter and supersede and merges all prior proposals, understandings and contemporaneous communications. RDKM may modify these Terms occasionally, for example, to reflect changes to the law or changes to the Licensed Materials. RDKM will use reasonable efforts to post notice of modifications to these Terms on the Website. Regardless, changes are effective immediately when posted. You agree that your continued use of the Licensed Materials constitutes your acceptance of the modified terms. You may not assign any of the rights or obligations granted hereunder, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of RDKM, and any attempted assignment in violation of this paragraph is void. These Terms do not create or imply any partnership, agency or joint venture. No waiver by either party of any covenant or right under these Terms will be effective unless memorialized in a writing duly authorized by the other party. If any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of these Terms will remain in full force and effect.
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