Trak Global Group Limited, trading as IMS (“IMS”) permits the use of the IMS SDK (“SDK”) and any other software covered by the terms of this SDK evaluation licence (“Agreement”) only to such licensees who agree to the terms contained herein.
Any person or entity that wishes to evaluate the SDK (such person or entity being the “Licensee”) must signify their acceptance of the terms of this Agreement in the manner required by IMS, prior to utilising the SDK. By downloading the SDK, the Licensee agrees to the terms of this Agreement, if they have not already done so prior to such download.
Any person or entity who is unwilling to agree to the terms of this Agreement, or who breaches the terms of this Agreement after downloading the SDK, must immediately cease any further use of the SDK.
Any person downloading the SDK on behalf of a third party, such as an employer, a customer, a client or any other third party, must be able to show, to IMS’ reasonable satisfaction, that they have the express authority to bind such third party to the terms of this Agreement.
1. Definitions. In addition to those terms defined above, the following capitalised terms will have the following meanings:
1. “API” means application programming interface. 2. “Effective Date” means the date that this Agreement is accepted by the Licensee or on the Licensee’s behalf. 3. “Feedback” has the meaning given to it in Section 7 below. 4. “Licensee App” means any application into which the Licensee incorporates the SDK. 5. “Licensee Modifications” means any modifications the Licensee makes to sample code provided with the SDK. 6. “OSS” means open source software. 7. “Platform” means IMS’ proprietary suite of software applications. 8. “SDK” means IMS’ software development kit, which is a set of header files, documentation, APIs, sample code and other software libraries and tools, and which allows users to develop applications that can access and use the Platform. 9. “Term” has the meaning given to it in Section 8.1. 10. “Usage Data” means information, analytics, and data that IMS collects in connection with the Licensee’s use of any Licensee App that incorporates any part of the SDK.
2. The SDK.
2.1 License Grant. Subject to the Licensee’s compliance with the terms and conditions of this Agreement, IMS grants to the Licensee a limited, non-exclusive, non-transferable, and non-sublicensable license during the Term of this Agreement to: (a) use the object code libraries, APIs, and documentation specified in the SDK solely for the Licensee’s internal, non-commercial use and solely to evaluate how the Licensee Apps access, interact with and otherwise use the Platform; and (b) modify any sample code included within the SDK solely as necessary to enable the Licensee Apps to accesses, interact with and otherwise use the Platform solely for the purposes of evaluating the Licensee Apps and their use of the Platform.
2.2 Restrictions. The Licensee will not: (a) modify or delete any copyright, trademark, or other proprietary notices of IMS or its licensors that are included in or generated by the SDK; (b) reverse engineer, decompile, disassemble, or otherwise tamper with or seek to discover any source code included in the SDK (except and only to the extent that any such restrictions are prohibited by applicable law); or (c) modify any of the object code libraries or APIs included with or specified in the SDK. The Licensee may not use IMS APIs other than pursuant to this Agreement and as documented in the SDK.
2.3 IP Rights. This Agreement does not: (a) provide the Licensee with any right or license (whether expressly, by implication, by estoppel, or otherwise) under any of IMS’ intellectual property rights other than to use the SDK during the Term solely in the manner and solely to the extent authorized in Section 2.1; or (b) impair the right of IMS to develop, make, use, procure, protect, market and/or exploit any products or services. IMS reserves all rights not expressly granted to the Licensee. In consideration for the rights granted hereunder, the Licensee will not assert or authorize, assist, or encourage any third party to assert, any intellectual property infringement claim against IMS or any of its affiliates, customers, or licensees regarding any portions of the SDK or any features or functions enabled by the SDK.
2.4 Modifications to the SDK. Except for sample code provided with the SDK, the Licensee may not make any modifications to the SDK. As between the Licensee and IMS, and subject to IMS’ ownership of the SDK, the Licensee will own any Licensee Modifications; provided, that the Licensee may only use Licensee Modifications as part of a Licensee App and solely for the Licensee’s internal, non-commercial use in connection with the Licensee’s evaluation of how such Licensee App accesses, interacts with and otherwise uses the Platform. The Licensee will provide all Licensee Modifications to IMS and the Licensee hereby grants to IMS a perpetual, irrevocable, non-exclusive, royalty-free, and worldwide license to use, reproduce, create derivative works from, distribute, publicly display, publicly perform, make, have made, offer for sale, sell or otherwise dispose of, import, and otherwise commercialize the Licensee Modifications in connection with IMS’ products and services, with the right to sub-license each and every right.
2.5 Changes. IMS reserves the right, at any time and without liability, to change the features and functionality of the SDK and the Platform. Such changes might include, without limitation, disabling APIs or limiting API calls. IMS will use commercially reasonable efforts to provide the Licensee with prior notice of any such changes made during the Term hereof. If the Licensee does not agree to the changes, the Licensee’s sole course of action will be to stop using the SDK and terminate this Agreement.
3. Usage Data. IMS will own and retain all right, title, and interest in the Usage Data. The Licensee acknowledges and agrees that IMS may collect any Usage Data produced by or resulting from any Licensee App, and that IMS may use such Usage Data in an aggregated and anonymized manner for any purpose it so chooses.
4. SDK Development and Distribution.
4.1 Guidelines. The Licensee’s use of the SDK and of any Licensee App must: a. comply with any guidelines set forth in the documentation included with or referenced in the SDK, as updated from time to time; b. comply with any and all applicable laws, rules, or regulations; c. not result in any modification or damage to, or deletion or disabling of the Platform or any other IMS software or services; and d. not disrupt, interfere with, or access in an unauthorized manner the Platform or any IMS software or servers. 4.2 Access. IMS may, in its reasonable discretion and without prior notice to the Licensee, suspend the Licensee’s use of the SDK and access to the Platform at any time if IMS reasonably believes that (a) the Licensee is in breach of any obligations under this Agreement; (b) the Licensee App or the Licensee’s use of the SDK poses a security risk; (c) there is a bug or performance issue with the Licensee App or the Licensee’s use of the SDK; (d) the Licensee App or the Licensee’s use of the SDK violates, misappropriates, or infringes the rights of IMS or a third party; or (e) the Licensee App or the Licensee’s use of the SDK imposes unexpected or excessive demands on the Platform. Upon any such suspension, the Licensee and IMS will cooperate in good faith to identify the cause of the issue giving rise to the suspension, and without limiting any of IMS’ other rights, no suspension will be lifted until the Licensee can demonstrate to IMS’ reasonable satisfaction that the Licensee has removed or otherwise remedied the issue or issues giving rise to the suspension.
5. Fees. Subject to the Licensee complying with the terms and conditions of this Agreement, the SDK will be provided to the Licensee at no additional cost for the Term hereof, provided, however, that IMS reserves the right to institute a fee for the use of the SDK, and IMS will provide the Licensee with prior written notice of any such fee that is instituted during the Term.
6. Open Source.
Licensee’s Use of Open Source. The Licensee will:
a. comply with all applicable OSS licensing terms and obligations (including any notice and attribution requirements) relevant to the Licensee App or any access and use of the Platform by the Licensee, and cooperate with all reasonable requests by IMS to verify such compliance; b. not use any OSS in any Licensee App in such a way that would (i) cause any IMS software (including the SDK) to be subject to any OSS licensing terms or obligations, or (ii) purport to require IMS (or its agents) to disclose or make available any of the keys, authorization codes, methods, procedures, data or other information related to the IMS technology; and c. not use in any Licensee Apps any OSS that is licensed under the GPLv3, LGPLv3, Affero GPLv3, licenses.
7. Feedback. The Licensee may, but is not obligated to, provide IMS with any feedback, comments, or suggestions (collectively, “Feedback”). The Licensee understands and agrees that: (i) any Feedback will be provided on a non-confidential basis; (ii) IMS will have no obligation to review, consider, or implement any Feedback that the Licensee provides; and (iii) the Licensee irrevocably grants and agrees to grant to IMS and its successors and assigns, perpetual and unlimited permission to use, reproduce, modify, distribute, display, and perform any Feedback and any derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback, whether in whole or in part, and whether as provided by the Licensee or as subsequently modified by IMS or by any third party.
8. Term and Termination.
8.1 Term. The term of this Agreement will commence upon the Effective Date and continue for a period of 30 days (the “Term”). 8.2 Termination. Either party may terminate this Agreement at any time by sending written notice to the other party, via email to firstname.lastname@example.org. 8.3 Effects of Termination. Upon termination of this Agreement: (i) IMS will immediately disable the Licensee’s use of the SDK; and (ii) the Licensee will immediately cease using the SDK (including any Licensee App or feature or portion thereof that uses or otherwise depends on the SDK) and delete all copies it has in its possession or under its control. This section and Sections 2.2 – 2.4, 3, 6-13 will survive termination of this Agreement, howsoever occurring.
9. Confidentiality; Publicity. The parties have previously executed, and will continue to be bound by, a nondisclosure agreement that governs all confidential and proprietary information that they exchange, and the Licensee understands and agrees that the contents of the SDK, together with the terms and conditions of this Agreement, constitute the confidential information of IMS. In addition, neither party will issue any press release or make any public statements about this Agreement or the relationship of the parties hereunder without the prior written approval of the other party.
10. Disclaimer of Warranties. IMS is providing the Licensee with the SDK and access to the Platform “as is” without warranties or any kind, and the Licensee’s use of the SDK and the Platform is undertaken solely at the Licensee’s risk. To the greatest extent permitted by law, IMS and its successors in title expressly disclaim any and all warranties, whether express or implied, including any warranties regarding the accuracy, operation, use, non-infringement, title, merchantability, and fitness for any particular purpose.
11. Limitation of Liability. IMS will not be liable to the Licensee for any direct, indirect, incidental, consequential, or special damages (even if IMS has been advised of the possibility of such damages or such damages are foreseeable) arising out of or related to the use of the SDK and the terms of this Agreement, including, but not limited to, any loss of revenue, anticipated profits, loss of business or opportunity, or loss of data. In no event will IMS’ liability to the Licensee arising out of the use of the SDK by the Licensee or any breach of the terms of this Agreement exceed £100.
12. Indemnification. The Licensee will indemnify, defend, and hold harmless IMS and its officers, directors, employees, and agents from and against any and all third-party claims, demands, damages, liabilities, costs, and expenses (including reasonable legal fees and costs) arising out of or related to: (a) the Licensee’s use of the SDK and the Platform; (b) any development or use of a Licensee App; and (c) the Licensee’s breach of this Agreement (including, without limitation, any failure by any of the Licensee’s affiliates to comply with any of the terms and conditions of this Agreement). IMS will use commercially reasonable efforts to provide the Licensee with prompt notification of any claim for which IMS seeks an indemnity, but IMS’ failure to provide such notice will not limit the Licensee’s obligation to indemnify IMS except to the extent that the Licensee has been materially harmed by such failure to provide prompt notice. IMS will cooperate in the Licensee’s defence of any claim, at the Licensee’s sole expense. The Licensee may not settle any claim against IMS in a manner that adversely affects IMS without IMS’ prior written consent, such consent not to be unreasonably withheld. IMS may participate in the defence of a claim through counsel of its own choice at its own expense, provided, however, that if the Licensee is unwilling, or if IMS reasonably determines that the Licensee is unable to defend the interests of IMS, then IMS may assume the defence against any claims at the Licensee’s expense. IMS will not settle any claim for which the Licensee is obliged to indemnify IMS without the Licensee’s prior written consent, such consent not to be unreasonably withheld or delayed.
13. General Terms.
13.1 Assignment. The Licensee may not assign or transfer this Agreement (or any of the Licensee’s rights or obligations under this Agreement) (a) without IMS’ prior written consent, and (b) where consent has been granted, by ensuring that any assignee or transferee agrees to be bound by this Agreement in the same manner as the Licensee (including with respect to any intellectual property rights). Any attempted assignment or transfer without complying with the preceding sentence will be void. IMS may freely assign or transfer this Agreement. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and permitted assigns. 13.2 Entire Agreement; Amendments. This Agreement supersedes all prior discussions and writings regarding the subject matter hereof, and constitutes the entire agreement between the parties with respect to the Licensee’s use of the SDK for evaluation purposes. The parties may only amend this Agreement in writing executed by both parties. No employee, agent, or other representative of IMS has any authority to bind IMS with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. 13.3 Irreparable Harm. The Licensee agrees that any actual or threatened breach of this Agreement by the Licensee would cause immediate and irreparable harm to IMS, the value of which would be difficult or impossible to determine and for which monetary damages would be inadequate compensation. Accordingly, in addition to any other remedies, IMS will be entitled to obtain injunctive relief or specific performance from any court of competent jurisdiction to prevent any such breaches and the Licensee expressly waives: (a) the defence that monetary damages would be adequate compensation for IMS; (b) the defence that the harm to the Licensee and/or to others would outweigh the harm to IMS; and (c) any requirement that IMS post a bond or other security. 13.4 Notices. To be valid, all notices permitted or required under this Agreement must be sent in writing, via certified mail, by a party to the other party at the other party’s registered. Notices will be deemed given on receipt by the applicable party. 13.5 Relationship. This Agreement does not confer any third party beneficiary rights and does not create a joint venture, agency, partnership, or other form of joint enterprise between the parties. Except as expressly provided herein, neither party has the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. There are no intended third party beneficiaries of this Agreement. 13.6 Severability, Waiver, and Interpretation. If any provision of this Agreement is found to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. No waiver of any breach of this Agreement will constitute a waiver of any other breach. In construing or interpreting the terms of this Agreement: (a) the headings in this Agreement are for convenience only, and are not to be considered, and (b) no presumption is to operate in either party’s favour as a result of its role in drafting this Agreement. 13.7 Counterparts. This Agreement may be executed in any number of identical counterparts, each of which will be deemed an original and all of which will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures. 13.8 Governing Law and Jurisdiction. This Agreement is to be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
BY TAKING ANY REQUIRED ACTION TO INDICATE ACCEPTANCE OF THIS AGREEMENT, THE LICENSEE (OR THE LICENSEE’S REPRESENTATIVE) IS ACKNOWLEDGING ITS UNDERSTANDING OF THIS AGREEMENT, AND THAT THE LICENSEE WILL BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.