Last Updated: September 20, 2018
FYBER SOFTWARE DEVELOPMENT KIT (“SDK”) LICENSE AGREEMENT
BEFORE YOU (“YOU” OR “LICENSEE”) USE THE FYBER SDK, PLEASE READ ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. YOUR USE OF THE FYBER SDK IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY CLICKING THE “I AGREE” BUTTON OR BY USING ANY PART OF THE FYBER SDK, YOU AGREE (ON BEHALF OF YOURSELF AND/OR YOUR COMPANY) TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH THEN COMMENCES WITH EFFECT AS A LEGAL AGREEMENT BETWEEN YOU AND THE FYBER GROUP. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD OR USE THE FYBER SDK.
IMPORTANT NOTE: This license is primarily applicable to several proprietary components, owned by more than one entity of the Fyber Group, which are not open sourced. If applicable, the Open Source Software license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software.
1.1 “Open Source Software” includes, without limitation, a software license that requires as a condition of use, modification, and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software be (a) disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no charge.
1.2 “Fyber Group” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with Fyber N.V to this Agreement, but only for so long as such control exists, and where “control” shall mean ownership of more than 50% of the stock or other equity interests entitled to vote for the election of directors or an equivalent governing body.
1.3 “Fyber SDK” includes the documentation, software, both source code and object code, sample applications, emulator, tools, libraries, APIs, data, and materials provided by the Fyber Group to You for use in connection with Your mobile application, and includes any updates that may be provided by the Fyber Group.
1.4 “Fyber Services” by integrating the Fyber SDK with your mobile application, you will be able to use the Fyber services (subject to entering into a commercial agreement with Fyber pertaining to such services), which will enable you to sell your mobile application ad space inventory to advertisers programmatically.
1.5 “You” (or “Your”) shall mean an individual or legal entity exercising permissions granted by this License.
2. License Grant.
2.1 Subject to the terms and conditions of this Agreement, the Fyber Group hereby grants to You a royalty-free, non-exclusive, non-transferable and worldwide license to download and use the SDK for the sole purpose of connecting to and using the Fyber Services.
3.1 Except for the limited license granted to You herein, You agree that all right, title and interest in and to the Fyber SDK including the concepts and technology inherent in them, trademarks, copyrights, patents, trade secrets and other intellectual property rights, are, and at all times shall remain, the sole and exclusive property of the Fyber Group. Except to the extent permitted under this Agreement or by applicable law, You shall not (i) modify, reverse engineer or disassemble any portion of the Fyber SDK; (ii) lease, rent, copy, redistribute or sublicense the Fyber SDK to third party; or (iii) remove, efface or obscure any copyright notices, logos or other proprietary notices or legends included in the FYBER SDK. You may not use any component part of the Fyber SDK in any way independent from the Fyber SDK. You may not load or install any of the Fyber SDK onto any other devices, except on Your mobile application.
3.2 The Fyber Group may extend, enhance, or otherwise modify the Fyber SDK at any time without notice. If updates are made available by the Fyber Group, the terms of this Agreement will govern such updates, unless the update is accompanied by a separate license, in which case the terms of that license will govern. The Fyber Group is not obligated to provide any maintenance, technical or other support for the Fyber SDK. You acknowledge that the Fyber Group has no express or implied obligation to announce or make available any updates to the Fyber SDK.
4. Use of the Fyber SDK.
4.1 Your Application(s) must not (i) breach any applicable laws, regulations or generally accepted practices or guidelines in the applicable jurisdictions; (ii) contain any material, component or code which could damage, destroy, unduly burden or unreasonably affect software, firmware, hardware, data, systems, services, or networks; or (iii) disable, hack or otherwise interfere with any authentication, content protection, digital signing, digital rights management, security or verification mechanisms implemented in or by the Fyber Group and/or the Fyber Services.
4.2 Your mobile application(s) must not breach any applicable laws, regulations or generally accepted practices or guidelines in the applicable jurisdictions or disable, unduly burden or unreasonably interfere with software, firmware, hardware, data, systems, services, or networks.
4.3 You agree that You are solely liable for any breach of your obligations under this Agreement or any applicable laws or regulations, and for the consequences of any such breach.
5. Open Source Software.
5.1 You hereby acknowledge that the Fyber SDK may contain Open Source Software. You agree to review any documentation that accompanies the Fyber SDK in order to determine which portions of the Fyber SDK are Open Source Software and are licensed under an Open Source Software license. To the extent any such license requires that the Fyber Group provides You the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to You in this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software.
5.2 You acknowledge that the Open Source Software license is solely between You and the applicable Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any.
6. DISCLAIMER OF WARRANTY.
6.1 THE FYBER SDK IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. FYBER DO NOT WARRANT THAT THE USE OF THE FYBER SDK WILL NOT INFRINGE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. FYBER DOES NOT WARRANT THAT THE FYBER SDK IS ERROR FREE AND MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE FYBER SDK, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO INFORMATION OR ADVICE GIVEN BY THE FYBER GROUP OR ITS AGENTS, EMPLOYEES, OR REPRESENTATIVES, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY REPRESENTATION OR WARRANTY.
6.2 TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE FYBER GROUP BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR FOR ANY PECUNIARY DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR GRANT OF LICENSE HEREIN, OR INABILITY TO USE THE FYBER SDK, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE FYBER SDK, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THE FYBER GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1 You agree to indemnify, defend and hold harmless the Fyber Group from any claims, damages, liabilities, losses, costs, suits or expenditures incurred by the Fyber Group, as a result of any infringement or alleged infringement of intellectual property rights of a third party caused by or arising out of, resulting from, or related to failure to comply with the terms of this Agreement, including but not limited to (1) the clauses directed to combining the SDK with Open Source Software, (2) unauthorized use or disclosure of SDK, and (3) use of SDK in combination with software, hardware, systems, or other items not provided by the Fyber Group.
8.1 You acknowledge and agree that the FYBER SDK was developed at considerable time and expense by the Fyber Group and contains valuable trade secrets and confidential information of the Fyber Group. Accordingly, You agree to maintain the FYBER SDK in confidence and except as expressly provided in Section 2, You (i) will not disclose or provide access thereto to any person, or (ii) use the Fyber SDK for any purpose not expressly authorized hereby, or permit or authorize any other person to do so. 8.2 The restriction herein shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of You. Any combination of trade secrets and information of the Fyber Group that forms part of the Fyber SDK shall not be deemed to be public merely because individual parts of the Fyber SDK are in the public domain, unless the combination itself is in the public domain.
9. Term and Termination.
9.1 Term. The term of this Agreement shall commence as of your acceptance of the terms of this Agreement or your use of the Fyber SDK and continue until (a) terminated by either You or the Fyber Group; or (b) termination or expiration of your agreement with the Fyber Group.
9.2 Termination. You may terminate this Agreement simply by ceasing Your use of the Fyber SDK. The Fyber Group may terminate this Agreement (i) at any time for any or no reason upon 14 day’s written notice to you or (ii) immediately upon written notice to You if You have materially breached this Agreement. 9.3 Effect of Termination. Upon termination of this Agreement: (a) all license rights granted in this Agreement will terminate; (b) You shall promptly stop the distribution of the Fyber SDK and destroy all electronic copies of the Fyber SDK and/or return the Fyber SDK to the Fyber Group. The Sections entitled Restrictions, Use of the Fyber SDK, Open Source Software, Disclaimer of Warranty, Indemnification, Confidentiality, Term and Termination and General Legal Terms shall survive the expiration or termination of this Agreement for any reason.
10. General Legal Terms.
10.1 Export Compliance. You are responsible for applying for and obtaining all export and import licenses and/or authorizations related to the Fyber SDK or Applications, including without limitation all such licenses and authorizations required by any and all governmental bodies and/or regulatory agency.
10.2 Assignment. You may not assign the Agreement, in whole or in part, by operation of law or otherwise, without the Fyber Group’s prior written consent, and any attempt to do so without such consent shall be void.
10.3 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel without regard to any conflict-of-laws rules. Each Party agrees to submit to the personal and exclusive jurisdiction of the courts of Tel-Aviv, Israel. The parties specifically exclude from application to the Agreement, including theses Terms, the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
10.4 Amendments and No Waiver. This Agreement may be modified without notice. The failure by the Fyber Group or You to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party in the performance or compliance with any of the terms and conditions set forth in this Agreement.
10.5 Entire Agreement. This Agreement contains the entire agreement of You and the Fyber Group with respect to its subject matter and supersedes all existing agreements and all other oral, written or other communications between the You and the Fyber Group concerning this subject matter. If any of the provisions of the Agreement is determined to be invalid, illegal or otherwise unenforceable, such provision shall be deemed replaced by a provision which carries out the original intent and purpose of such provision to the greatest extent lawful and the remaining provisions shall remain in full force and effect.