LICENSE AGREEMENT FOR THE SDK AND API OF THE PROXIMITY PLATFORM
This Agreement is between NewAer, makers of the innovative Proximity
Platform, and you, the person or company that is planning to develop
amazing Applications on said platform and whom is listed on the
registration of our site. Our lawyers required that we have this
contractual Agreement, but we have done our best to make it easily
understood and short, at just about two pages. This Agreement
begins when you click "I Accept" below and terminates upon the
earlier of (i) provision of a termination notice by either of us to
the other or (ii) our mutual agreement on a fee-based commercial
agreement.
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License. We grant you a
non-sublicensable, non-transferable (except as described in
Section 13), non-exclusive, terminable, limited license to (i)
incorporate or create derivative works of the Sample Code for the
development of Applications that utilize the Proximity Platform,
(ii) run the SDK Code from within the Applications in accordance
with the Documentation, and (iii) to use the SDK Code to access
the API and Server Code in accordance with the Documentation, up
to the to the Free Quota Limit.
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Free Quota. The "Free Quota Limit" is
the limit of one million calls to the API and
Server Code for each of your Applications. That means one
million “triggers” of something that leverages our
machine-to-machine connection in your app or on the cloud.
After you use up your Free Quota Limit, we will enter into a
new fee-based commercial agreement with you to authorize your
Application to have additional use of the Proximity Platform.
The cost per API call after that start at a 1/10th of a US cent and
goes lower based upon your API volume or any pre-paid application
or handset license that you might opt to employ for your
application. We will work out these details in a future contract.
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No Implied Licenses. There are no
implied licenses under this Agreement, and any rights in or to the
Proximity Platform are not expressly granted to you are reserved
by us.
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Restrictions.
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You may not use the Proximity Platform in excess of the
Free Quota Limit without entering into a prior written
agreement with us for your fee-based usage. You may not
request additional Proximity Platform keys to circumvent the
Free Quota Limit for your Application.
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You may not, directly or indirectly, in whole or in part:
(i) sell, rent, sublicense, lease, loan, commercially share or
otherwise transfer or distribute the Proximity Platform (or
any part thereof) without our prior written consent; (ii) use
the Proximity Platform in violation of U.S. or other
applicable laws, statutes, ordinances; or (iii) permit any
action that would adversely affect our right, title or
interest in or to the Proximity Platform.
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You may not use the Proximity Platform in connection with
any Application unless it (i) complies with all applicable
laws, statutes, ordinances, and regulations, (ii) does not
promote or use spyware, adware, or any other malicious program
or code, and (iii) is not pornographic, hate-related, violent
abusive, or otherwise offensive in content as determined by us
in our sole discretion.
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You may not use the Proximity Platform if (i) you are a
national or resident of any country to which the United States
has embargoed goods, or (ii) on the United States Treasury
Department's list of Specially Designated Nationals or the
U.S. Commerce Department's Table of Denial and Prohibition
Orders.
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You must require your Application end users to comply with
any applicable law and this Agreement. You will not enable
your Application end users to violate applicable law or these
terms.
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End User Privacy. You will provide and
adhere to a privacy policy for your Applications that clearly
and accurately describes to the end users of your Applications
what user information you collect and how you use and share such
information with us and third parties. Your use of the Proximity
Platform may cause the Application to transmit to us an
anonymized hash of the device IDs which through another vendor
database, could be used to derive the location of the end user's
device and those known devices around it. Any such data
transmitted to us shall be treated in accordance with our
privacy policy currently located at
http://www.newaer.com/privacy
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Intellectual Property.
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Ownership. You acknowledge that we
and our licensors (if any) own all right, title and interest,
including without limitation all intellectual property rights,
in and to the Proximity Platform, as well as to all updates,
enhancements and modifications thereto. As between the
parties, we shall have the exclusive right to institute
infringement or other appropriate legal action against any
alleged, prospective or actual infringement of our
intellectual property rights in the Proximity Platform, and
shall retain all money received from any such action
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Attribution / Trademarks. You shall
include the statement "Powered by NewAer ProxPlatform" and a
hyperlink to our web site (http://www.newaer.com) within
each Application. You will use the NewAer name only in
conformance with our trademark usage policies as
communicated to you from time to time. You acknowledge that
your use of the NewAer name will not create in you, nor will
you represent that you have, any right, title or interest in
or to the NewAer name.
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Feedback. You grant us the right to use
Feedback in any manner we deem appropriate.
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Warranty Disclaimer. You acknowledge
that the Proximity Platform is provided to you "as is," and that
we make no warranty of any kind, whether express or implied,
regarding the Proximity Platform, and we specifically disclaim the
warranties of merchantability, fitness for a particular purpose
and non-infringement to the maximum extent permitted by law. In
addition, we do not warrant that the Proximity Platform will meet
your (or any of your end user's) requirements, operate without
interruption, be error-free. You will bear all risks relating to
the quality and performance of the Proximity Platform, and assume
the entire cost of all necessary support, repair, and
correction. You acknowledge that you have not relied on any
representations or warranties (including any representations,
warranties, or other statements that may have been made orally or
in writing), and are relying solely upon your own judgment and
expertise, as to the suitability of the Proximity Platform for
your use.
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Indemnity. You will defend, indemnify,
and hold harmless us from and against any loss arising out of any
claim related to your or your end users' use of the Proximity
Platform or breach of this Agreement.
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Protection of Confidential Information.
You acknowledge that the Proximity Platform contains proprietary
trade secrets of NewAer. You agree not to decompile, disassemble,
reverse engineer, or attempt to reconstruct, identify, or discover
any source code (other than source code provided as Sample Code),
underlying ideas, underlying user interface techniques (unless
expressly authorized by the Documentation), or algorithms of the
Proximity Platform by any means whatsoever, except to the extent
the foregoing restriction is prohibited by applicable law.
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Post-Termination. Upon termination of
this Agreement, all licenses and rights of access granted to you
shall immediately terminate. Upon termination, you shall delete or
destroy all SDK Code, Sample Code and Documentation and other
materials that we have provided to you (and any copies thereof
made by you). All provisions of this Agreement which by their
nature contemplate performance after the termination hereof shall
survive any such termination.
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Limitation of Liability. Neither we
nor our suppliers and licensors will be liable to you or your end
users for any incidental or consequential damages for breach of
any express or implied warranty, breach of contract, negligence,
strict liability or any other legal theory related to the
Proximity Platform (including, without limitation, lost profits or
lost data, loss of other programs, damages for loss of goodwill,
work stoppage, computer failure or malfunction, or any and all
other commercial damages or losses), even if we have been advised
of the possibility of such damages. In any case, our aggregate
liability under this Agreement will be limited to $10.
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U.S. Government End Users. The
Proximity Platform is a commercial computer software program
developed exclusively at private expense. If you or your end users
are U.S. Government end users, the Proximity Platform is being
provided and/or licensed (a) only as a "Commercial Item" and (b)
with only those rights as are granted to all other end users
pursuant to this Agreement.
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Miscellaneous. This Agreement is the
entire agreement between the parties with respect to, and
supersedes any previous oral or written communications or
documents concerning, the subject matter of this Agreement. This
Agreement is governed by the laws of the State of California, USA,
as such laws apply to contracts between California residents
entered into and performed entirely in California (notwithstanding
your place of residency). You agree that any dispute arising from
or relating to this Agreement shall be brought exclusively in a
court of competent jurisdiction, federal or state, located within
the State of California, County of Los Angeles, and in no other
jurisdiction, and you hereby consent to personal jurisdiction and
venue in, and agree to service of process issued or authorized by,
such court. You acknowledge this Agreement is drawn up in the
English language, and English shall be the official language of
this Agreement. This Agreement will not be governed by the
U.N. Convention on Contracts for the International Sale of
Goods. If any provision of this Agreement is found to be invalid
or unenforceable, it will be enforced to the extent permissible
and the remainder of this Agreement will remain in full force and
effect. We may assign any or all of our rights or obligations
under this Agreement. You may not assign this Agreement to any
other person without our prior written consent, except that you
may assign this Agreement in connection with a sale or other
disposition of all or substantially all the assets of your
business upon written notice to us. This Agreement shall be
binding upon and inure to the benefit of the respective parties
and their permitted successors and assigns.
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Defined Terms.
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"Agreement" means this License
Agreement for the SDK and API of the Proximity Platform.
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"Application(s)" mean the application(s) developed by you
that utilize NewAer's proximity services.
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"API and Server Code" means the Proximity Platform software
code running on NewAer's servers.
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"Feedback" means any anonymized
usage data, comments, criticisms, reports, or other feedback,
whether in oral or written form that you provide to us
regarding the function, features, and other characteristics of
the Proximity Platform including, without limitation, any
errors, problems, or defects in, or suggestions for changes or
improvements to, the Proximity Platform.
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"NewAer" or "we" means NewAer, Inc.
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"Proximity Platform" means the
software and documentation made available for download or use
hereunder, and designed for your use with your
Applications. The Proximity Platform consists of the SDK Code,
Sample Code, API and Server Code, and Documentation.
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"Sample Code" means the Proximity
Platform source code examples.
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"SDK Code" means the binary
Proximity Platform SDK designed for embedding in your
Application.
Revised March 1st, 2013