DEVELOPER PROGRAM AGREEMENT
TERMS
AND CONDITIONS
This Zipit Developer Program
Agreement (“Agreement”) is made by Zipit Wireless, Inc., a Delaware
corporation (“Zipit”), and Developer as identified above, who
provides the information requested and clicks on the “I ACCEPT”
button to accept the terms of this Agreement.
RECITALS
A. Zipit is the developer and
manufacturer of the Zipit Wireless Messenger 2 (the “Z2”), a
software and hardware product for instant messaging and other
personal electronic applications.
B. Zipit wishes to make
available to the developer community certain of the software, code
and information to allow development by such community of
applications for use either as a part of the Z2 or utilizing the Z2
hardware independently of the Z2 application software.
C. Additionally, Zipit wishes to
provide to the developer community a forum for accessing the
software, code and information and for sharing their development
efforts and information through a Zipit created and maintained
website (the “Developer’s Exchange”).
D. Zipit is willing to make
available certain software, code and information and provide the
Developer’s Exchange only upon the agreement of Developer to be
bound by these terms and conditions.
AGREEMENT
1. Services and Licenses
a.
Services.
Subject to the terms and conditions set forth in this Agreement,
Zipit agrees (i) to provide to Developer a non-transferable and
non-exclusive account enabling Developer to access the Developer’s
Exchange, (ii) to provide within the Developer’s Exchange a forum
for accessing and sharing information on and related to application
development for the Z2, and (iii) to provide access for the download
of the software and code licensed under this Agreement (collectively,
the “Services.”) The Services may be provided by Zipit or such
third parties that Zipit designates.
b. Software
License.
The software provided through the Developer’s Exchange (the
“Software”) is subject to one of two licenses. Certain of the
code is subject to a public license (“Public Code”), such as the
Free Software Foundation’s GNU
General Public License
(the “GPL”), a copy of which is available by clicking here.
Zipit cannot negotiate or change the terms of the GPL. As for all
software identified as Zipit proprietary code (“Proprietary Code”),
Zipit grants Developer a limited, non-transferable, non-exclusive
license to use, copy and modify the Proprietary Code solely for
non-commercial, internal purposes. Developer expressly is prohibited
from any distribution or public display or broadcast of any
Proprietary Code.
c. Documentation
License. The
information provided by Zipit through the Developer’s Exchange is
the proprietary material of Zipit (the “Documentation”) and is
protected by copyright. Zipit grants Developer a limited,
non-transferable, non-exclusive license to use the Documentation
solely for non-commercial, internal purposes.
d. Trademark
License. Zipit owns
all rights and title in and to the Zipit trademark, logo and other
associated trademarks used by Zipit (the “Marks”). If Developer
wishes to denote any Developer Creations, as defined below, as being
compatible with the Z2, Developer must submit the Developer Creation
to Zipit for evaluation. If Zipit, through its evaluation, finds the
Developer Creation to be compatible with the Z2 and to otherwise meet
the Zipit’s standards, as determined by Zipit in its sole
discretion, Zipit will grant Developer a limited, non-transferable,
non-exclusive license to use the Marks solely to indicate that
Developer Creations are compatible with the Z2.
e. Retention
of Rights. All
rights not granted herein are and remain the rights of Zipit.
2.
Proprietary Rights
a.
Zipit’s Proprietary Rights.
Zipit retains all right, title and interest (including copyright and
other proprietary or intellectual property rights) in the Proprietary
Code, Documentation, Developer’s Exchange and all legally
protectable elements thereto.
b. Developer’s
Proprietary Rights.
Such right to and title in and to any developments (“Developer
Creations”) created by Developer shall be vested in Developer.
Developer hereby agrees not to sell, market or otherwise distribute
any Z2 hardware loaded with any Developer Creations without the
consent of Zipit, which consent will be in Zipit’s sole discretion.
c. Protection
of Marks. Developer
agrees that the use of the Zipit’s Marks shall conform to the
standards and be used in accordance with the
Trademark Usage Guidelines,
set by, and revised from time to time by, Zipit and posted on the
Developer’s Exchange, which Developer agrees to review from time to
time. Developer agrees to exercise its best efforts to cooperate
with Zipit in monitoring and controlling any use of Zipit’s Mark.
Developer shall not use the Zipit’s Mark in such a way as to
indicate that Developer is providing the goods or services of Zipit
or in any manner that may harm the reputation of Zipt. Upon
termination of this Agreement, Developer shall immediately cease all
use of Zipit’s Marks and return all electronic copies of Zipit’s
Marks to Zipit.
d. Intellectual
Property Rights of Third Parties.
Developer posting material on or through the Service or obtaining
material from sources other than Provider on or through the Service,
shall not do so in any manner that infringes the copyrights or other
intellectual property rights of third parties. Should Zipit obtain
actual knowledge of such violations, Zipit will remove or disable
connections to the violating material. Zipit has the right to
terminate Developer’s access to the Developer’s Exchange, in
whole or part, and to terminate this Agreement if, in the opinion of
Zipit, Developer is an abuser of third parties’ copyrights or other
intellectual property rights. Furthermore, if Zipit is subject to
liability or incurs costs in defending any allegation of liability
resulting from Developer’s postings, Developer shall indemnify and
make Zipit whole, including paying reasonable attorney’s fees.
3.
Limitations
a. Accessability.
Developer understands that from time to time the Services may be
inaccessible or inoperable for any reason, including, without
limitation: (i) equipment malfunctions; (ii) periodic maintenance
procedures or repairs which Zipit may undertake from time to time; or
(iii) causes beyond the control of Zipit or which are not reasonably
foreseeable by Zipit, including, without limitation, interruption or
failure of telecommunication or digital transmission links, hostile
network attacks, network congestion or other failures. Developer
agrees that Zipit has no control of availability of Services on a
continuous or uninterrupted basis.
b.
Security. Access to
Developer’s Exchange requires a valid user ID and password (the
“Access Codes”). It is Developer’s responsibility to keep
secure its own Access Codes and monitor use of the Access Codes.
c.
Privacy. See
Zipit’s
Privacy Policy
outlining Zipit’s privacy practices.
d. Links.
For User’s convenience, the Developer’s Exchange may contain
links to third party sites that Zipit does not own or maintain. With
respect to those sites, Zipit assumes no liability, and does not
endorse or make any representations about any information, products,
or services associated with those sites, or any results that may be
obtained from using such sites. Developer’s access and use of such
third party sites, and use of any information obtained as a result of
that access, is at Developer’s sole risk.
4. Developer’s
Representations and Covenants
a. Representations.
Developer represents and warrants to Zipit that: (a) Developer has
the power and authority to enter into and perform its obligations
under this Agreement; (b) Developer, and Developer’s employees and
agents who use the Software, Documentation or Services, shall comply
with all terms and conditions of this Agreement; (c) Developer has
advised and notified each of its employees and agents in writing of
all terms, conditions, duties and obligations under this Agreement,
and all employees and agents agree to all such terms, conditions,
duties and obligations applicable to each under this Agreement; and
(d) the undersigned representative of Developer is authorized to
execute this Agreement on behalf of Developer.
b. Confidentiality.
Developer agrees that all information disclosed by Zipit through the
Developer’s Exchange that relates to Zipit’s products, designs,
business plans, business opportunities, finances, research,
development, know-how, personnel, or third party confidential
information, will be considered and referred to collectively as
“Confidential Information.” Confidential Information, however,
does not include: (i) information that Zipit makes generally
available to the public; (ii) information that Developer can
demonstrate to have had rightfully in its possession prior to
disclosure to Developer by Zipti; (iii) information that is
independently developed by Developer without the use of any
Confidential Information; (iv) information that Developer rightfully
obtains from a third party who has been given the right to transfer
or disclose it by Zipit; or (v) any third party software or
documentation provided by Zipit and accompanied by licensing terms
that do not impose confidentiality obligation on the use or
disclosure of such software and documentation, for example, software
governed by the GPL. Developer agrees not to disclose, publish, or
disseminate Confidential Information to any third party and to take
reasonable precautions to prevent any unauthorized use, disclosure,
publication or dissemination of Confidential Information. Developer
agrees not to use Confidential Information other than as provided in
this Agreement.
c. Coordination
with Zipit Provided Services.
If Developer desires to offer or provide any Developer Creations to
third parties for a fee, royalty payment or other consideration
(“Commercial Applications”) and such Commercial Applications are
to provide any services that are the same as or similar to the Zipit
Provided Services, Developer agrees that it shall utilize only Zipit
Provided Services in its Commercial Applications for the services of
its Commercial Applications that are to be the same as or similar to
the Zipit Provided Services. The terms for utilization of the Zipit
Provided Services by Developer shall be mutually determined and
agreed to by Zipit and Developer, both acting in good faith. “Zipit
Provided Services” mean services provided by Zipit currently
(including but not limited to instant messaging, texting and
customizable backgrounds, themes, fonts and ringtones) and in the
future, where such future services shall become part of the Zipit
Provided Services only when made commercially available by Zipit.
d. Reseller
of Hardware. If
Developer desires to offer, provide or sell to third parties
Developer Content load onto or otherwise coupled with any Z2,
Developer agrees to offer such bundled Z2 and Developer Content only
with the prior written approval and consent of Zipit.
5. Prohibited Uses
Developer is solely responsible
for any and all acts and omissions that occur under Developer’s
account or password,
and Developer agrees
not to engage in unacceptable use of the Service, which includes,
without limitation, use by the Developer to: (a) disseminate, store,
post, provide or transmit files, graphics, software or other material
that actually or potentially infringes the copyright, trademark,
patent, trade secret or other intellectual property right of any
person; or (b) engage in any other activity deemed by Zipit to be in
conflict with the spirit or intent of this Agreement. In the event
Developer engages in any actions that violate the provisions of this
Section 5, as determined by Zipit in its sole discretion, in addition
to Zipit’s rights under Section 6, Zipit shall have the right to
remove or block any content posted or otherwise provided by Developer
to or through the Developer’s Exchange.
6. Term and Termination
This Agreement is effective upon
Developer’s acceptance as set forth herein and shall continue in
full force until terminated. Zipit reserves the right, in its sole
discretion and without notice, at any time and for any reason, to:
(a) remove or disable access to all or any portion of the Service;
(b) suspend Developer’s access to or use of all or any portion of
the Service; and (c) terminate this Agreement.
Upon termination of
this Agreement, Developer shall immediately cease all use of the
Services, Software, Documentation and Marks and shall return to Zipit
or destroy any and all copies of the Software, Documentation and
Marks then in Developer’s possession and certify to Zipit that all
such copies have been returned or destroyed.
7. Disclaimer of Warranty
THE SERVICES, SOFTWARE AND
DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED. USE OF THE SERVICES, SOFTWARE AND DOCUMENTATION
ARE AT DEVELOPER’S SOLE RISK. ZIPIT DOES NOT WARRANT THAT THE
SERVICES, SOFTWARE, DOCUMENTATION OR ANY DATA CONTAINED IN OR
RECEIVED THROUGH THE SERVICES, WILL BE UNINTERRUPTED OR ERROR FREE,
NOR DOES ZIPIT MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE
OBTAINED BY USE OF THE SERVICES, SOFTWARE OR DOCUMENTATION. ZIPIT
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES.
8. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL
ZIPIT BE LIABLE TO DEVELOPER OR ANY OTHER PERSON FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER
ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR THE
INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, DEVELOPER’S USE
OR INABILITY TO USE THE SERVICES, ANY CHANGES TO OR INACCESSIBILITY
OF THE SERVICES, DELAY, FAILURE, OR ANY DATA OR MATERIAL FROM A THIRD
PERSON ACCESSED ON OR THROUGH THE SERVICES, WHETHER SUCH LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT
SHALL ZIPIT’S LIABILITY FOR ANY DIRECT DAMAGES ARISING FROM OR
RELATING TO THIS AGREEMENT, THE SERVICES OR THE INTERNET GENERALLY
EXCEED $100. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF
LIABILITY MAY NOT APPLY TO DEVELOPER. IF DEVELOPER IS DISSATISFIED
WITH THE SERVICES, DEVELOPER’S SOLE AND EXCLUSIVE REMEDY SHALL BE
FOR DEVELOPER TO DISCONTINUE USE OF THE SERVICES.
9. Indemnification
Developer agrees to indemnify,
hold harmless and defend Zipit and its directors, officers, employees
and agents from and against any action, claim, demand or liability,
including reasonable attorney’s fees and costs, arising from or
relating to (i) infringement of third party intellectual property or
other proprietary rights by any Developer Creations or on account of
information provided by Developer through the Services; or (ii) use,
negligent use or fraudulent use of the Services by Developer, or any
other authorized or unauthorized third party.
10. Miscellaneous
a. Independent
Contractors.
The parties and
their respective personnel are and shall be independent contractors
and neither party by virtue of this Agreement shall have any right,
power or authority to act or create any obligation, express or
implied, on behalf of the other party.
b. Waiver.
No waiver of any
provision hereof or of any right or remedy hereunder shall be
effective unless in writing and signed by the party against whom such
waiver is sought to be enforced. No delay in exercising, no course
of dealing with respect to, or no partial exercise of any right or
remedy hereunder shall constitute a waiver of any other right or
remedy, or future exercise thereof.
c. Severability.
If any provision of
this Agreement is determined to be invalid under any applicable
statute or rule of law, it is to that extent to be deemed omitted,
and the balance of the Agreement shall remain enforceable.
d. Notice.
All notices shall be
in writing and shall be deemed to be delivered when sent by
first-class mail, postage prepaid, or when sent by facsimile or
e-mail to either parties’ last known street, facsimile or e-mail
address, respectively. Developer hereby consents to notice by email.
All notices shall be directed to the parties at the respective
addresses given simultaneous with the execution of this Agreement or
to such other address as either party may, from time to time, provide
to the other party.
e. Amendment.
Zipit shall have the
right, at any time and without notice, to add to or modify the terms
of this Agreement, simply by delivering such amended terms to
Developer by email at the address provided to Developer by Zipit.
Developer’s access to or use of the Services after the date such
amended terms are delivered to Developer shall be deemed to
constitute acceptance of such amended terms.
f. Governing
Law.
This Agreement shall
be governed in all respects by the laws of the State of South
Carolina without regard to its conflict of laws provisions. The
parties to this Agreement expressly waive any right they may have to
a jury trial. The parties agree that any litigation arising out of
this Agreement, including any litigation requiring the construction
or interpretation of this Agreement, shall be heard exclusively in
the federal or state courts located in Greenville County, South
Carolina. All parties consent to the jurisdiction of such courts,
and waive any right to have any proceeding transferred from such
courts on the ground of improper venue or inconvenient forum.
g. Survival.
All provisions that
by their nature are intended to survive termination shall survive any
termination or expiration of this Agreement.
h. Force
Majeure. If the
performance of any part of this Agreement by either party is
prevented, hindered, delayed or otherwise made impracticable by
reason of any flood, riot, fire, judicial or governmental action,
labor disputes, act of God or any other causes beyond the control of
either party, that party shall be excused from such to the extent
that it is prevented, hindered or delayed by such causes.
i. Dispute
Resolution. The
parties agree to use their best efforts to resolve any dispute that
may arise under this Agreement through good faith negotiations. No
party shall commence any litigation in relation to this Agreement
until the chief executives of both parties have met for the purpose
of endeavoring to resolve the dispute on mutually acceptable terms.
Litigation may commence if the two chief executives can not agree on
a date to meet within 30 days of the first attempt by either party to
establish said meeting.
j. Costs
and Fees. If any
litigation shall ever occur between the parties arising from or
related to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys’ fees and costs from the
non-prevailing party. This includes, without limitation, the
recovery of any reasonable attorneys’ fees and costs incurred in
addressing violations of this Agreement prior to litigation.
k. Entire
Agreement.
This Agreement
constitutes the complete and exclusive statement of all mutual
understandings between the parties with respect to the subject matter
hereof, superseding all prior or contemporaneous proposals,
communications and understandings, oral or written.
YOU
AGREE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND CERTIFY THAT YOU HAVE THE
AUTHORIZATION TO EXECUTE THIS AGREEMENT ON BEHALF OF THE DEVELOPER.
