When You purchase the right to use the DkSDK Software Development Kit ("the Dev Kit"), You are the Licensee in this Agreement and Diskuv, Inc., a Delaware corporation, is the Licensor.
YOU MUST CAREFULLY READ ALL OF THE TERMS OF THIS AGREEMENT BEFORE PURCHASING THIS LICENSE TO USE THE DEV KIT.
1. Acceptance of License Terms. When You make a payment towards the purchase price for the license to use the Dev Kit, it means that You have read, understand, and accept all the terms and conditions of this License Agreement.
2. Purpose. The Dev Kit's general purpose is to help software developers create, edit, and distribute a set of related mobile, web, desktop, and embedded applications.
3. Dev Kit Components.
The Dev Kit consists of the following components: DkSDK CMake; DkSDK Actors; DkSDK FFI C; DkSDK FFI C++; DkHelloWorld; DkHelloWorldActor; DkSDK FFI Java; DkSDK FFI Swift; DkSDK FFI Web; DkSDK Access; and such other components as Licensor may add (if any) from time to time the Dev Kit repository (the "Repository") during the term of this Agreement.
(a) Ownership. You agree that Diskuv, Inc. is the sole owner (the "Licensor") of the Dev Kit, including any updates and additions thereto, and as the Licensee, You will not acquire title to the Dev Kit. The Dev Kit components contain some code from open source libraries, including but not limited to the following: OCaml; 7-zip (binaries only); Dune; Opam; CMake; Cap n' Proto; Redis; Swift Corelibs Foundation; Hashmap.c; Libuuid; Uthash; Base; Memtrace; Lwt; Refl; Wget (binaries only); Logs, Bos, Cmdliner, Tsdl; Ctypes; Yojson; Protobuf; and PPX Protobuf. Use of this code by Licensor and You is subject to their respective licenses (e.g., Apache 2.0.).
(b) Grant of License. Licensor grants you, pursuant to the terms and conditions of this Agreement, a perpetual non-exclusive non-transferable non-assignable non-sublicensable license to access the Dev Kit in the Repository online and use the Dev Kit under and subject to the terms and conditions of this Agreement. Licensor reserves the unilateral right to change the Repository's location from time to time by providing notice to You of the new location.
(1) Except as provided in this Subsection 4(c), and subject to third-party code licenses, You shall not copy any portion of the Dev Kit. You may make up to three ''backup copies'' of the Dev Kit for archival purposes kept securely stored on computers owned or leased by You. Upon Licensor's request, You shall provide Licensor a written description of the procedures under which You make backup copies and Licensor shall promptly approve or disapprove those procedures. Licensor's approval shall not be unreasonably withheld.
(2) You shall reproduce and include Licensor's applicable copyright notice, patent notice, trademark, or service mark on any copies of the Dev Kit, including any modifications, adaptations, or conversions. Furthermore, each copy shall state that it is the property of Licensor in the following language:
''This copy of the DkSDK Software Development Kit and supporting documentation is the property of Diskuv, Inc., a Delaware corporation, and is protected under the copyright, trade secret, and proprietary laws of the United States and, when applicable, the State of Delaware.''
(d) Updates. Licensor reserves the right to make changes and updates to the Dev Kit's functionality and/or documentation and the Dev Kit's components from time to time (the "Updates"). For as long as you remain a paid subscriber in good standing, you will have access to the Updates.
(e) Retained Rights. Licensor specifically reserves all rights not specifically granted above.
(f) Restrictions on Use. You agree to use the Dev Kit only for Your own software development business. You shall not:
(1) permit any third parties (e.g., subcontractors) to use the Dev Kit, including but not limited to, as a multi-tenant system;
(2) sublicense, assign, or transfer the license or the Dev Kit (subject to the terms and conditions of third-party licenses for some of the code);
(3) remove any of Licensor's or third-party proprietary notices, legends, or labels from the Dev Kit, its components, or supporting documentation;
(4) use the Dev Kit to develop, test, support, or market products that are directly or indirectly competitive with the Dev Kit;
(5) attempt to access Dev Kit features or other Licensor content for which You have not been given express permission to access per the terms of this Agreement or by separate agreement with Licensor; or
(6) violate any applicable law.
(g) Passwords and Access. You are responsible for all activities that occur under Your Repository account. You are responsible for maintaining the security and confidentiality of Your username and password. You agree to notify Licensor immediately of any unauthorized use of Your Repository username, password, account, or any other known or suspected breach of security. You agree to take all actions Licensor reasonably deems necessary to maintain or enhance the security of the Repository, the Dev Kit, and related to Your use thereof.
(h) Modifications/Reverse Engineering. You agree that only Licensor shall have the right to alter, maintain, enhance, or otherwise modify the Dev Kit components within the Repository. Except as permitted for third-party licensed code contained within Dev Kit, You shall not attempt to adapt, copy, disassemble, decompile, or reverse engineer the Dev Kit or any of its components.
(i) Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 4 are material and that Your failure to comply with these terms and conditions shall constitute sufficient cause for Licensor to terminate this Agreement. The presence of this Subsection 4(i) shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party.
5. Term & Termination of License. The license granted by this Agreement shall commence when the Dev Kit is purchased by You (the "Commencement Date") and shall be perpetual unless otherwise terminated earlier pursuant to the terms of this Agreement. You may terminate this license at any time by voluntarily destroying all Dev Kit copies within Your control or possession. This license shall also be terminated automatically if You (a) fail to comply with any term or condition of this Agreement, (b) obtain a refund of the purchase price, or (c) attempt to transfer possession of the Dev Kit to a third party for the third party's commercial use. You also agree that on termination of this Agreement for any reason, You shall immediately destroy all Dev Kit copies within Your control or possession.
6. Warranty of Title. Licensor warrants that it has good title to or has licensed rights to the Dev Kit's components and has the right to license the Dev Kit's use to You subject to the terms and conditions of this Agreement.
7. Limited Warranty.
(a) Licensor warrants the Dev Kit to be free from material defects in materials and workmanship under normal conditions of use for a period of sixty (60) days from the date of delivery of the Dev Kit content to You as set forth on Your receipt for the purchase of the Dev Kit. This warranty is limited to you, the original Licensee, and is not transferable.
(b) The warranty contained in Subsection 7(a) does not extend to the Dev Kit if it has been damaged because of Your accident, misuse, abuse, or as a result of service or modification by anyone other than Licensor.
8. Waiver of Implied Warranties. YOU ACKNOWLEDGE THAT THE DEV KIT IS LICENSED ON AN ''AS IS'' BASIS, AND THAT SHOULD THE DEV KIT PROVE DEFECTIVE, EXCEPT TO THE EXTENT SPECIFIED IN SECTION 7, YOU (AND NOT LICENSOR) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
9. Warranty Disclaimers.
(a) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, NO OTHER WARRANTIES ARE MADE WITH RESPECT TO THE DEV KIT. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES NOT STATED IN THIS AGREEMENT.
(b) LICENSOR DOES NOT WARRANT THAT THE DEV KIT WILL MEET YOUR REQUIREMENTS OR THAT THE USE OF THE DEV KIT SHALL BE ERROR-FREE.
(c) YOU ASSUME RESPONSIBILITY FOR THE SELECTION OF THE DEV KIT TO ACHIEVE THE RESULTS INTENDED BY YOU AND FOR ANY INSTALLATION, USE, AND RESULTS OBTAINED FROM THE DEV KIT.
(d) ANY COMMUNICATIONS WITH LICENSOR IS NOT A SUBSTITUTE FOR LEGAL, TAX, FINANCIAL, OR OTHER PROFESSIONAL ADVICE. LICENSOR'S PRINCIPALS, EMPLOYEES, AND AGENTS ARE NOT LEGAL, TAX, OR FINANCIAL PROFESSIONALS AND NOTHING IN LICENSOR'S COMMUNICATIONS SHOULD BE MISCONSTRUED TO MEAN OTHERWISE.
10. Warranty Remedies.
(a) During the warranty period, Licensor shall replace any part of the Dev Kit that fails to meet the express warranty contained in Section 7. If Licensor is unable to deliver a replacement that is free of defects in materials or workmanship, You may terminate this Agreement and receive a refund of the purchase price by destroying all the Dev Kit copies and documentation within Your control or possession, requesting a refund, and signing an Affidavit of Destruction in a form satisfactory to Licensor.
(b) You agree that Your sole remedies and Licensor's entire liability are as set forth in Subsection 10(a).
11. Limitation of Remedies.
YOU UNDERSTANDS THAT LICENSOR IS USING THIRD-PARTY SERVICES TO PROVIDE WEBSITE HOSTING, REPOSITORY, AND PAYMENT PROCESSING SERVICES (THE "THIRD-PARTY SERVICES") FOR THE DEV KIT AND THAT THESE THIRD PARTIES ARE BEYOND THE CONTROL OF LICENSOR. YOU MAY EXPERIENCE SUSPENSION OF THIRD-PARTY SERVICES AND/OR DATA LOSS BECAUSE OF CLOUD PLATFORM OUTAGES AND MAINTENANCE BY THESE THIRD PARTIES. YOU MAY ALSO EXPERIENCE TEMPORARY SUSPENSION OF REPOSITORY SERVICES WHILE LICENSOR PERFORMS DEV KIT MAINTENANCE AND UPDATE TASKS. TO THE EXTENT PERMITTED BY LAW, LICENSOR AND ITS PARTNERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE ANY OF THE THIRD-PARTY SERVICES, THE DEV KIT, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES. LICENSOR DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO: (I) ANY THIRD-PARTY CLAIMS ARISING FROM OR BASED ON YOUR USE OF THE DEV KIT; (II) ACCESS DELAYS OR ACCESS INTERRUPTIONS; (III) DATA NON-DELIVERY OR DATA MIS-DELIVERY; (IV) ACTS OF GOD; (V) THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT NAME OR PASSWORD; (VI) ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICE(S) PROVIDED UNDER THIS AGREEMENT; (VII) THE DELETION OF OR FAILURE TO STORE DATA OF ANY KIND; OR (VIII) PROCESSING OF ANY AUTHORIZED MODIFICATION TO YOUR RECORD OR YOUR FAILURE TO PAY ANY SUBSCRIPTION FEES OR OTHER FEES. YOU AGREE THAT LICENSOR'S ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY THIRD-PARTY SERVICES PROVIDED UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT YOU PAID FOR SUBSCRIPTION SERVICES DURING THE THIRTY (30) DAYS PRECEDING THE DATE THE CLAIM AROSE.
IN NO EVENT SHALL LICENSOR BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, LOST SAVINGS, OR OTHER DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE DEV KIT OR ANY OF ITS COMPONENTS. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND WHERE APPLICABLE THE ABOVE LIMITATIONS OR EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. Taxes. You shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding taxes based upon the net income of Licensor.
13. Governing Law. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods; rather, these rights and obligations shall be governed by the law of the State of Delaware, including the Uniform Commercial Code as enacted in Delaware.
14. Jurisdiction & Dispute Resolution.
(a) Intellectual Property Rights. To the extent You have in any manner violated or threatened to violate Licensor's intellectual property rights, Licensor may seek injunctive or other appropriate relief in any state or United States federal court, and You consent to exclusive jurisdiction and venue in such courts.
(b) Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof, except for intellectual property protection sought by Licensor pursuant to Subsection 14(a), shall be settled by arbitration in accordance with the Commercial Rules of the American Arbitration Association. The arbitration shall be held in the English language. Licensor and You, before entering into arbitration, shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the panel. Should the two arbitrators not be able to agree on a choice of the third, then the American Arbitration Association shall make the appointment of a person who is neutral to the Parties in question. None of the arbitrators shall be officers or employees of the Parties to this Agreement. Such arbitrators shall be recognized experts in the computer software field. Each party shall bear its own costs of arbitration, including fees of its appointed arbitrator. The fees of the third arbitrator shall be borne equally by the Parties. The location of arbitration shall be within Snohomish County, Washington USA.
15. Limitations Period. No arbitration or other action under this Agreement, unless involving death or personal injury, may be brought by either party against the other more than three hundred sixty-five (365) days after the act or omission occurred upon which it is based.
16. No Consequential Damages. Neither party shall be liable to the other party for indirect, special, incidental, exemplary or consequential damages (including, without limitation, lost profits) related to this Agreement or resulting from the use or inability to use the Dev Kit or any of its components, arising from any cause of action whatsoever, including contract, warranty, strict liability, or negligence, even if the party has been notified of the possibility of such damages.
17. Limitation on Recovery. Under no circumstances shall the total liability of Licensor to You exceed the total amount paid by You to Licensor under this Agreement during the prior three hundred sixty-five (365) days before the claim is made by You.
18. Force Majeure. Licensor, its principals, employees, and agents shall not be liable for failure to perform any of Licensor's obligations under this Agreement during any period in which Licensor cannot perform due to fire, earthquake, flood, or other natural disaster, epidemic or pandemic, explosion, casualty, war, terrorism, embargo, riot, civil disturbance, act of public enemy, act of God, or the intervention of any government authority, or similar cause beyond Licensor's control.
19. Severability. If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the applicability of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20. Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach. No waiver of any right under this Agreement shall be effective unless in writing and signed by the party against whom the waiver may be asserted.
21. Modification or Amendment. This is the entire Agreement shall not be modified or amended unless done so in a writing signed by duly authorized signatories of both parties.
22. No Agency. No joint venture, partnership, employment, or agency relationship exists between Licensor and You because of this Agreement or use of the Dev Kit or its components.
23. No Third-Party Beneficiaries. The Parties do not intend to create in any other individual or entity the status of third-party beneficiary, and this Agreement shall not be construed to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the Parties to this Agreement and shall inure solely to the benefit of such parties. The Parties to this Agreement intend and agree that only they shall have any legal or equitable right to enforce this Agreement, or to seek any remedy arising out of its breach.
24. Survival. The provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination.
25. Notices. Licensor will contact You as-needed using the mailing address or email address You provided at time of purchase. It is Your obligation to update Your contact information if it changes. If You have any questions or concerns about the Dev Kit or this License, You agree to contact Licensor by mail at Diskuv, Inc., Attn: Beckford - SDK, 16212 Bothell Everett HWY Suite F254, Mill Creek, Washington, 98012-1602 USA or by email to email@example.com. Licensor may change its contact information by providing You with notice from time to time.
26. Headings. The headings used in this Agreement are for convenience only and shall not be construed as a part of the Agreement or as a limitation on the scope of the particular Sections to which they refer.
27. Agreement Copyright. The text of this Agreement is Copyright © 2012-2023 Law Office of Michael E. Young PLLC and is licensed for use by Licensor. All other rights reserved.
28. Marketing & Promotion. You hereby grant Licensor the right to list You (including company name and logo) as a customer in Licensor's marketing and promotional materials for the Dev Kit.
29. Nondisclosure of Confidential and Proprietary Information. Neither party shall knowingly disclose confidential or proprietary information obtained from the other during the performance of the Agreement for a period of twenty-four (24) months from the date of first disclosure of respective piece of confidential or proprietary information. Notwithstanding the alternative dispute resolution provisions of this contract, any material violation of this Section 29 entitles the injured party to seek injunctive relief to prevent irreparable harm. Each party shall return or destroy (at the owner's option), each other's confidential or proprietary information upon substantial performance under this Agreement.
30. Non-Disparagement. During and after the term of this Agreement, neither Party to this Agreement nor anyone acting on their behalf shall knowingly make any derogatory or disparaging statements about the other, or its past or present direct or indirect parent companies, subsidiaries, or affiliated entities, or any of its past or present officers, directors, employees, consultants, agents, representatives, successors or assigns, or directly or indirectly take any action which is intended to embarrass any of them.
31. Licensor Acquisition & Transferability. If Licensor is purchased by a third party, the parties agree that all of Licensor's rights and responsibilities under these licensing terms and conditions are transferable to the acquirer.
32. Entire Agreement. This License Agreement constitutes the entire agreement with respect to the use of the Dev Kit licensed hereunder and supersedes all prior or contemporaneous understanding regarding such subject matter.
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We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
Questions about the Terms of Service should be sent to us at firstname.lastname@example.org.
When you visit the Site, we automatically collect certain information about your device, including information about your web browser, IP address, time zone, and some of the cookies that are installed on your device. Additionally, as you browse the Site, we collect information about the individual web pages or products that you view, what websites or search terms referred you to the Site, and information about how you interact with the Site. We refer to this automatically-collected information as “Device Information.”
We collect Device Information using the following technologies:
Additionally when you make a purchase or attempt to make a purchase through the Site, we collect certain information from you, including your name, billing address, shipping address, payment information (including credit card numbers), email address, and phone number. We refer to this information as “Order Information.”
Additionally when you create a Diskuv account on our Site or App, we collect certain information from you, including your phone number and proof that you know your chosen password. We do not collect your full password. You may optionally add other information to your account, such as a profile name and profile picture. We refer to this information as "Account Information.”
Additionally when you send messages or call users through the App, we collect certain information from you, including the destination phone number and the times for messages and calls. Diskuv queues end-to-end encrypted messages on its servers for delivery to devices that are temporarily offline. Your message history is stored on your own devices. Additional technical information is stored on our servers, including randomly generated authentication tokens, keys, push tokens, and other material that is necessary to establish calls and transmit messages. We refer to this information as “Metadata.”
We use the Order Information that we collect generally to fulfill any orders placed through the Site (including processing your payment information, arranging for shipping, and providing you with invoices and/or order confirmations). Additionally, we use this Order Information to:
We use the Device Information that we collect to help us screen for potential risk and fraud (in particular, your IP address).
We use the Account Information that we collect to verify someone who claims to be you is you, and to protect your privacy on both the Site and the App. We also use the Account Information to allow designated App users to message and call you.
We use the Metadata that we collect to establish calls and transmit messages.
We share your Personal Information with third parties to help us use your Personal Information, as described above. For example, we use third parties to authenticate you with our Site and App, and send verification codes to your phone number.
Finally, we may also share your Personal Information to comply with applicable laws and regulations, to respond to a subpoena, search warrant or other lawful request for information we receive, or to otherwise protect our rights.
If you are a European resident, you have the right to access personal information we hold about you and to ask that your personal information be corrected, updated, or deleted. If you would like to exercise this right, please contact us through the contact information below.
Additionally, if you are a European resident we note that we are processing your information in order to fulfill contracts we might have with you (for example if you make an order through the Site), or otherwise to pursue our legitimate business interests listed above. Additionally, please note that your information will be transferred outside of Europe, including to Canada and the United States.
When you place an order through the Site, we will maintain your Order Information for our records unless and until you ask us to delete this information.
When you create an account through the Site or App, we will maintain your Account Information for our records unless and until you ask us to delete this information. We occasionally delete proof of your chosen password so that you will need to create a new password at your next Site or App login. We will do so when to protect you and other users from potential risk and fraud.
We periodically delete Metadata that is at least seven (7) days old when we no longer need this information to protect you and other users from potential risk and fraud.
The Site and App are not intended for individuals under the age of 18.
For more information about our privacy practices, if you have questions, or if you would like to make a complaint, please contact us by e-mail at email@example.com or by mail using the details provided below:
Diskuv, Inc. Attn: Beckford - Privacy
16212 Bothell Everett Highway, Suite F254
Mill Creek, WA, 98012