SDK LICENSE AGREEMENT

PLEASE READ THIS SDK LICENSE AGREEMENT ("AGREEMENT") CAREFULLY. BY USING AND INCORPORATING THE SDK IN ANY MOBILE, WEB OR OTT APPLICATION OR SERVER-SIDE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND THAT THE PERSON EXECUTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THE ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Apptimize, Inc. ("Apptimize") provides an A/B testing and release management cloud based service for mobile, web and OTT applications and server-side software (collectively, "Service"). Apptimize provides a software development kit and documentation (collectively, "SDK") to enable you to easily connect your mobile, web and OTT applications or server-side software to the Service. This SDK License Agreement governs your ("you") use of (or the entity on whose behalf your downloading) the SDK.


1.	ACCESS TO SDK.

1.1	License. Subject to the terms and conditions set forth in this Agreement, Apptimize hereby grants you a non-exclusive, non-sublicenseable, non-transferable, royalty-free, revocable, limited license ("License") during the term of this Agreement to: (a) download and access the SDK available at apptimize.com; and (b) use and incorporate the SDK into one or more of your mobile, web or OTT applications or server-side software that communicate with the Service (collectively, "Customer Application"); and (c) distribute the SDK in object code form only as part of a Customer Application in order to use the Service.  Apptimize may terminate the License at any time for any reason.

1.2	Updates. Apptimize may provide updates, upgrades, patches, enhancements or fixes for the SDK from time-to-time ("Updates"), and such Updates will become part of the SDK and subject to this Agreement. Notwithstanding the foregoing, Apptimize shall have no obligation under this Agreement or otherwise to provide you any such Updates or any other support for the SDK. In addition, you understand that Apptimize may cease supporting old versions or release of the SDK at any time in its sole discretion.


2.	RESTRICTIONS AND RESPONSIBILITIES.
You have no rights with respect to the SDK or any portion thereof and you will not use the SDK or any portion thereof except as expressly permitted in this Agreement.  Without limiting the generality of the foregoing, you will not: (i) reverse engineer, decompile, disassemble or attempt to access the source code of the SDK or modify or create derivative works of the SDK (except to the extent applicable laws specifically prohibit such restriction); (ii) rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the SDK; (iii) use the SDK for the benefit of a third party; (iv) remove or otherwise alter any proprietary notices or labels from the SDK, or any portion thereof; (v) contaminate, incorporate, integrate, link or bundle any portion of the SDK with any software code governed by open source, community source, freeware, shareware, or other public license or distribution model software; or (vi) use the SDK to build an application or product that is competitive with any Apptimize product or service. In addition, you may not use the SDK for any purpose other than interoperating with the Service in a manner for which the SDK and Service are expressly designed. You may only use the SDK in accordance with all applicable laws and regulations and if you are prohibited under applicable law from using the SDK, then you may not use it. You shall not: (a) permit any third party to access or use the SDK in violation of any U.S. law or regulation; or (b) export the SDK or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you shall not permit any third party to access or use the SDK in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria). You also shall not use the SDK to: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ii) bypass any measures Apptimize may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service).

You shall be responsible for using the SDK in compliance with all applicable laws and regulations, (including providing the appropriate notice and obtaining the necessary consents and releases from your end users regarding the collection, disclosure, transferring and processing of your end users' data in order for you to use that data in connection with the Service and for Apptimize to provide the Service). You are also responsible for complying with all third party terms and policies applicable to your Customer Applications.


3.	Ownership.
As between Apptimize and you, Apptimize owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the SDK, and any derivative works of the foregoing ("Apptimize IP").  You will not acquire any right, title, or interest in or to the Apptimize IP, except the limited rights granted in this Agreement. All other rights in and to the Apptimize IP are expressly reserved by Apptimize. For purposes of this Agreement, "Intellectual Property Rights" shall mean patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets and similar rights. Apptimize does not claim any ownership rights in your Customer Applications and you retain all Intellectual Property Rights in your Customer Applications (excluding the SDK).


4.	FEEDBACK.
You hereby grant Apptimize a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) you communicate to Apptimize during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Apptimize's rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. ("Feedback" refers to any suggestion or idea for modifying the SDK or any of Apptimize's products or services, including without limitation all intellectual property rights in any such suggestion or idea.)


5.	FEES.
Apptimize reserves the right to charge fees for future use of, or access to the SDK in Apptimize's sole discretion.  If Apptimize decides to charge for the SDK, such charges will be disclosed to you prior.


6.	TERM AND TERMINATION
This Agreement will commence on the date you download the SDK and will continue in force thereafter, unless terminated as provided herein. This Agreement will terminate automatically if (i) you violate any term of this Agreement or (ii) Apptimize sends a written notice of termination to you, or (iii) Apptimize otherwise ceases providing access to the SDK to you. You may terminate this Agreement by uninstalling and ceasing use of the SDK and removing it from your Customer Application. The terms and conditions of the following Sections will survive any termination or expiration of this Agreement:  2, 3, 4, 6-13.


7.	DISCLAIMER OF WARRANTIES

7.1	YOUR USE OF THE SDK IS AT YOUR SOLE RISK.  THE SDK IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.  APPTIMIZE  EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

7.2	NOT LIMITING THE FOREGOING, APPTIMIZE MAKES NO WARRANTY THAT (i) THE SDK WILL MEET YOUR REQUIREMENTS, (ii) THE SDK WILL OPERATE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND/OR THAT (iii) ANY ERRORS IN THE SDK WILL BE CORRECTED.

7.3	ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SDK IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM/NETWORK OR ANY LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR THE USE OF THE SDK.


8.	Limitation of Liability.
APPTIMIZE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SDK, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT APPTIMIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  UNDER NO CIRCUMSTANCES SHALL APPTIMIZE BE LIABLE TO YOU FOR ANY AMOUNT.


9.	Exclusions and Limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 8 AND 9 MAY NOT APPLY TO YOU.


10.	INDEMNIFICATION
You will indemnify, defend, and hold harmless Apptimize, its parent, affiliates and subsidiaries, and/or its licensees against any and all claims, suits, losses, liabilities, and/or judgments, including costs, expenses, damages, and legal fees based upon and arising from (i) your violation of the rights of others, including without limitation any alleged infringement of any third-party intellectual property rights by the Customer Application or other Customer Software (excluding the SDK) or the use thereof; (ii) your misuse of the SDK; (iii) your breach of any term of this Agreement; or (iv) your violation of any applicable law.  Apptimize will notify you of any claims within a reasonable time and will have the right, but not the obligation, to participate in any such contest, defense or litigation through counsel of its own choosing at your expense. You will not enter into any settlement in which the Apptimize admits liability, or in connection with which Apptimize's Intellectual Property Rights may be limited or compromised, without Apptimize's prior written approval, which Apptimize will provide in its sole discretion.


11.	Injunctive Relief
You acknowledge that a breach, actual or threatened, of this Agreement may cause irreparable harm to Apptimize, the amount of which may be extremely difficult to estimate, thus making any remedy at law inadequate. Apptimize will therefore be entitled to obtain immediate injunctive relief and any other relief Apptimize deems appropriate from a court of competent jurisdiction without having to post a bond or other security or prove irreparable harm. This right will be in addition to any other remedy available to Apptimize in law or equity.


12.	CONFIDENTIALITY.
The SDK is the confidential and proprietary information of Apptimize and you shall not disclose the SDK to any third party without Apptimize's prior written consent.


13.	GENERAL.
You may not assign this Agreement, in whole or in part, without Apptimize's prior written consent, including by operation of law or otherwise. Apptimize may assign this Agreement without your consent. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and each party hereby consents to the personal jurisdiction thereof. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. The Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Apptimize.
