This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
License Grant
DyScan refers to Dyneti Technologies’ credit card scanning system (“DyScan”). Licensee’s customers or end users scan their credit card using DyScan on their individual device. DyScan then verifies the cards are real and not fake or stolen. DyScan creates an output of the credit card number, which goes directly to the Licensee’s payment entry form or payment processor. Subject to full compliance with the terms of this Agreement, Dyneti Technologies hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to (i) use Dyneti Technologies’ card scanner application programming interface software development kit and related information and documentation we may provide (collectively, the “SDK”) for the sole purpose of allowing you to build software applications (each an “App”) and for other purposes authorized by us in writing, and (ii) distribute the SDK in object code form only as part of an App, and only subject to an end-user license agreement which is at least as protective of our proprietary rights in the SDK as those contained in this agreement. Without limiting the foregoing, these terms and conditions must include terms for Dyneti Technologies’ benefit regarding (a) restrictions on reverse engineering (to the maximum extent permitted by applicable law); (b) disclaimer of warranties; and (c) limitation of liability.
Restrictions; Ownership
You shall not (and shall not authorize or encourage any third party to), directly or indirectly: (i) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the SDK; (ii) clone the SDK, or use the SDK to build an application programming interface, application or product that is competitive with any Dyneti Technologies product or service, (iii) remove any proprietary notices from the SDK (or any portion thereof); (iv) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the SDK (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable statutory law); or (v) modify or create derivative works of the SDK. If Licensee intends at any time to institute such a program described in Section 2(ii), Licensee (a) will promptly inform Dyneti Technologies, and (b) will not use in that program (whether for advice, review or otherwise) any personnel who have had access to any part of the SDK, or any part of the SDK or any related intellectual property in connection with that program. Dyneti Technologies shall own all right, title, and interest (and all related moral rights and intellectual property rights) in and to the SDK, including any copies and derivative works thereof. No rights or licenses are granted except as expressly and unambiguously set forth herein.
Confidentiality. Except in connection with your limited right to distribute the SDK in object code form in accordance with Section 1, you agree not to disclose (or allow access to) the SDK (or any information derived therefrom) to any third party and will limit access to the SDK (and any derived information) to your employees who are developing the App(s). In support of this obligation, you will apply at least the same security that you use to protect your own most confidential information.
SDK Updates
If Dyneti Technologies provides you with any upgrades, patches, enhancements, or fixes for the SDK, then all items that are so provided will become part of the SDK, and subject to this Agreement. Notwithstanding the foregoing, Dyneti Technologies shall have no obligation under this Agreement to provide any such upgrades, patches, enhancements, fixes or any other support for the SDK.
Dyneti Technologies Trademarks
Subject to Dyneti Technologies’ express prior written consent, Apps may be branded with Dyneti Technologies’ specified trademarks in accordance with Dyneti Technologies’ trademark usage guidelines; provided that Dyneti Technologies will have the right to perform quality assurance inspections of each App and to withhold and/or suspend rights to use such trademarks if the quality is not satisfactory to Dyneti Technologies in its sole discretion.
Compatibility
Each App must maintain 100% compatibility with the SDK (including changes provided to you by Dyneti Technologies, which shall be implemented in each App promptly thereafter). If any App uses or implements an outdated version of the SDK you acknowledge and agree that such App may not be able to function. You agree not to modify, extend, subset or superset the SDK to any extent. You understand that we may cease support of old versions or releases of the SDK at any time.
Feedback License
Licensee may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the SDK (“Feedback”). Dyneti Technologies shall have an irrevocable, perpetual, worldwide, sublicenseable, transferrable, fully paid-up, royalty free right and license to use, distribute and otherwise exploit all Feedback for any purpose.
Support and Security
Dyneti Technologies will use commercially reasonable efforts to (i) provide basic support to Licensee, and (ii) maintain the security and integrity of the SDK.
Fees
Licensee shall pay Dyneti Technologies fees for the SDK as set forth in the Payment Page [link] (“Fees”). Unless otherwise specified, all Fees shall be invoiced monthly and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days after date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Licensee shall be responsible for all taxes associated with the SDK (excluding taxes based on Dyneti Technologies’ net income). All Fees paid are non-refundable and are not subject to set-off.
Term; Termination
This Agreement shall commence upon the Effective Date, and unless earlier terminated as set forth herein, (a) shall continue for one year (the “Initial Term”), and (b) following the Initial Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Term”) unless either party notifies the other party of such party’s intention not to renew, no later than thirty (30) days prior to the expiration of the Initial Term or then-current Renewal Term as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Licensee acknowledges that Dyneti Technologies may use certain technological features of the SDK to monitor Licensee’s usage of the SDK for billing purposes. Without limiting the foregoing, Dyneti Technologies may remotely suspend or limit Licensee’s access to or use of the SDK (provided that Dyneti Technologies will use reasonable efforts to give no less than thirty (30) days prior written notice to Licensee (email is acceptable for such purposes)) if (i) Licensee’s account is more than sixty (60) days past due, (ii) Licensee’s use of the SDK results in (or is reasonably likely to result in) damage to or material degradation of the service which interferes with Dyneti Technologies’ ability to provide access to the SDK to other licensees, or (iii) Licensee has an invalid API key. Licensee acknowledges that the product may include features to prevent use after the applicable license period and/or use inconsistent herewith. Upon termination, the license granted hereunder will terminate and Licensee shall immediately return to Dyneti Technologies or destroy all copies of the SDK in Licensee’s possession or control, together with any and all documents, notes and other materials regarding the SDK, including, without limitation, all copies and extracts of the foregoing. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Indemnification:
Licensee shall defend, indemnify, and hold harmless Dyneti Technologies, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees), that arise from or relate to (i) Licensee’s, Authorized Contractors’, or Licensee’s end users’ use or misuse of, or access to, the SDK in a negligent or willful manner or in violation of this Agreement, (ii) Licensee’s or Authorized Contractors’ violation of this applicable law or this Agreement, (iii) infringement by Licensee, Authorized Contractors’ or any third party using their accounts, of any intellectual property or other right of any person or entity, or (iv) a claim alleging that any Licensee’s data infringes the rights of, or has caused harm to, a third party. Dyneti Technologies reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee shall assist and cooperate with Dyneti Technologies in asserting any available defenses. Licensee will defend, indemnify and hold Dyneti Technologies harmless against any liabilities, claims, and expenses arising out of any action or omission by Licensee relating to the SDK.
Warranty disclaimer
You shall not (and shall not authorize or encourage any third party to), directly or indirectly: (i) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the SDK; (ii) clone the SDK, or use the SDK to build an application programming interface, application or product that is competitive with any Dyneti Technologies product or service, (iii) remove any proprietary notices from the SDK (or any portion thereof); (iv) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the SDK (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable statutory law); or (v) modify or create derivative works of the SDK. If Licensee intends at any time to institute such a program described in Section 2(ii), Licensee (a) will promptly inform Dyneti Technologies, and (b) will not use in that program (whether for advice, review or otherwise) any personnel who have had access to any part of the SDK, or any part of the SDK or any related intellectual property in connection with that program. Dyneti Technologies shall own all right, title, and interest (and all related moral rights and intellectual property rights) in and to the SDK, including any copies and derivative works thereof. No rights or licenses are granted except as expressly and unambiguously set forth herein.
Limitation of Liability
Except in connection with your limited right to distribute the SDK in object code form in accordance with Section 1, you agree not to disclose (or allow access to) the SDK (or any information derived therefrom) to any third party and will limit access to the SDK (and any derived information) to your employees who are developing the App(s). In support of this obligation, you will apply at least the same security that you use to protect your own most confidential information.
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