<p>
This SDK End User License Agreement and Terms of Use (the “EULA”) sets out the
terms under which OneSignal, Inc.
(“OneSignal” or “Company”) agrees to license
its proprietary SDK to the Licensee reading and agreeing to this EULA (the
“Licensee”).
Licensee signifies its agreement to this EULA by clicking through
the acceptance mechanism provided by Company (such as an “I Agree” or “I
Accept” button), or by engaging in any other legally sufficient behavior to
signify acceptance.
Please review these terms carefully, because they will
bind you with respect to your use of the EULA.
</p>
<ol>
<li>
<strong>License to the SDK </strong> Subject to Licensee’s compliance with
these terms, including the Restrictions in
Section 2, Company
grants Licensee a limited, worldwide, royalty-free, term-limited,
non-transferrable, and non-exclusive license to use the SDK within its
Applications and websites (collectively the “Properties”), or to use other
APIs, web services and other features provided by Company (the SDK and other
such features collectively referred to as the “SDK”), in order to send,
optimize and manage push notifications to users of its Properties, and to
use other related functionality provided within the Properties intended for
its use.
</li>
<li>
<strong>Restrictions on Licensee’s Use of the SDK.
</strong> Licensee agrees
that its license to the SDK is subject to the following conditions:
<ol>
<li>
Absent further agreement by the parties (which may be by email),
Licensee will not use the SDK in connection with any App that
constitutes or promotes illegal gambling, adult media (i.e.,
pornography), inflammatory religious content, violence, politically
religious agendas and/or any known associations with hate, criminal
and/or terrorist activities, discrimination, racism, harassment or hate
speech against any individual or group, pirated content or content that
violates a party’s intellectual property rights, tobacco products,
including e-cigarettes, firearms or ammunition, or any product that is
illegal in the jurisdiction in or into which it is sold.
</li>
<li>
Licensee will only use the SDK in connection with the Properties that it
owns and operates, and shall not sell, sublicense, give, rent, loan,
lease, or otherwise make the SDK or its components available to any
third party without the Company’s prior express written consent.
</li>
<li>
Licensee shall not (i) alter, hide, or remove any copyright, trademark,
or other intellectual property rights notice contained in the SDK.
(ii)
except as required to effectuate the rights granted under sub-section
(iii) herein, reverse engineer, decompile, disassemble, or otherwise
translate or derive the source code for the SDK, or attempt to do so;.
(iii) use the SDK to create any software or service containing any
malicious or harmful code.
(iv) use the SDK to damage, detrimentally
interfere with, surreptitiously intercept, or misappropriate any system
or data.
(v) use the SDK in violation of applicable law.
(vi) circumvent
or attempt to circumvent usage limits.
or (vii) use the service at
excessive levels that would degrade performance for other users
</li>
<li>
Licensee may and hereby is permitted to create derivative works of the
SDK provided that such derivative works shall be subject to the Modified
MIT (Open Source) License available here.
</li>
<li>
Licensee acknowledges and agrees that the Company may change the form
and nature of the SDK at any time in the Company’s sole discretion
without advance notice to Licensee, and that future versions of the SDK
may no longer be compatible with any given Property.
Licensee
acknowledges and agrees that Company may stop (permanently or
temporarily) providing the SDK (or any features within the SDK) to
Licensee at any time in the Company’s sole discretion without prior
notice to Licensee.
</li>
<li>
Nothing in this EULA permits Licensee to use any of the Company’s trade
names, trademarks, service marks, logos, domain names, or other
distinctive brand features without the Company’s prior express written
consent.
</li>
</ol>
</li>
<li>
<strong>Term and Termination.
</strong> This EULA shall commence as of the
Effective Date and shall remain in effect until terminated as provided
herein.
Either Party terminate this EULA for any reason or for no reason at
any time upon thirty (30) days’ prior written notice to the other Party.
Notwithstanding the foregoing, the Company may terminate this EULA
immediately upon written notice to Licensee in the event the Company
believes Licensee has breached
Section 2 or
4 herein.
Upon termination of this
EULA, the license granted to the SDK pursuant to
Section 1 shall immediately terminate and
Licensee shall no longer have any rights to use the SDK.
Licensee
understands, however, that the collection of data by the SDK through
Properties on which it is already integrated, and its use for purposes set
forth herein, may continue until End Users have (a) removed or disabled the
SDK (or any application that integrates the SDK) from their respective
devices, or any application that integrates the SDK from your device, or (b)
limited such data collection through applicable device settings in a manner
that is communicated to Company.
</li>
<li>
<strong>Compliance with COPPA </strong>: OneSignal permits developers to use
the service in applications “directed to children under 13” but Licensee
must meet certain obligations, including obtaining verifiable parental
consent and an opportunity to opt-out prior to sending a push token, email,
or other contact information to OneSignal.
Push Notifications or other
messages sent to children must also be reasonably related to the content of
Licensee’s application or website.
If you have questions about COPPA, the
U.S.
Federal Trade Commission provides a
COPPA FAQ
and you should consult your own legal advisor.
</li>
<li>
<strong>Use and Ownership of SDK Data.
</strong> Licensee acknowledges and
agrees that the SDK enables Licensee to collect certain information from end
users (“End Users”) of the SDK’s functionality (collectively, “SDK
Information”), which generally helps provide developers with functionality
to target and personalize the notifications they send to end users.
This
data collected includes: End Users’ mobile advertising identifiers, such as
Apple IDFAs and Android Advertising identifiers.
End Users’ email addresses
End Users’ IP address, device push token, precise location (e.g., GPS-level)
data, network information, language, time zone, product preferences, and
privacy preferences.
Licensee grants OneSignal a worldwide license to access
and use SDK data for the purpose of providing the Service in accordance with
these terms and to make data available to third parties as necessary to
provide capabilities of the OneSignal service.
</li>
<li>
<strong>Privacy Compliance.
</strong> The Parties agree to comply with all
applicable privacy laws, and each respective party agrees to perform the
following obligations:
<ol>
<li>
Licensee is responsible for obtaining all applicable consents required
to enable OneSignal to collect information from End User’s device or
browser.
Licensee shall publish privacy policies and disclosures for the
Properties that comply with applicable law and the terms of this EULA,
including, but not limited to, clearly disclosing that the SDK
Information will be collected and how it may be used, as set forth in
Section 5 above.
</li>
<li>
Each Party shall at all times comply with its respective published
privacy policies and disclosures, and each party shall at all times post
a privacy policy on its website that describes how it collects, uses and
shares information, and that provides information about how an End User
can opt out of interest-based advertising (e.g., online behavioral or
mobile cross-app advertising).
</li>
<li>
Where Licensee provides data (such as IDFAs, Android Ad IDs, or location
data) in a manner other than through Company’s proprietary SDK,
including without limitation through an API or an SDK proprietary to the
Licensee, Licensee shall be responsible for ensuring ensure that any
collection and transfer of data is done in compliance with user’s stated
preferences, including without limitation devices settings to “Limit Ad
Tracking” and “Opt Out of interest-based ads.”
</li>
<li>
Licensee shall notify Company in writing of any further data usage or
governance requirements, restrictions or limitations, to the extent they
apply, in which case the Parties may execute a further, paid
subscription plan setting out such limitations and licensing payments to
supplement the terms herein.
</li>
</ol>
</li>
<li>
<strong>Confidentiality </strong>
<ol>
<li>
For purposes of this EULA, “Confidential Information” means and includes
(a) the terms of this EULA, including any schedule, exhibit, attachment,
or amendment hereto.
and (b) all proprietary information, data, trade
secrets, business information, and any other information disclosed, in
writing, visually, or orally by or on behalf of a Party (“Discloser”) to
the other Party (“Recipient”) or to which Recipient obtains access in
connection with the negotiation or performance of this EULA that is
marked as “proprietary,” “confidential,” “trade secret,” or in some
other manner to indicate that Discloser considers it to be commercially
sensitive, or which a reasonable person would understand to be
commercially sensitive.
SDK Information shall not be Confidential
Information, but rather shall be subject to
Section 2
hereof.
Confidential Information shall not include information that: (i)
is already rightfully known to Recipient at the time it obtains
Confidential Information from Discloser.
(ii) is or becomes generally
available to the public other than as a result of disclosure in breach
of this EULA or any other confidentiality obligations.
(iii) is lawfully
received on a nonconfidential basis from a third party authorized to
disclose such information without restriction and without breach of this
EULA.
(iv) is contained in, or is capable of being discovered through
examination of, publicly available records or materials.
or (v) is
developed by a Party without the use of any Confidential Information
provided by the other Party.
</li>
<li>
Discloser’s Confidential Information shall remain the property of
Discloser, and Recipient shall not be deemed, by virtue of this EULA or
any access to Discloser’s Confidential Information, to have acquired any
right, title, or interest in or to Discloser’s Confidential Information.
Recipient agrees: (a) to hold Discloser’s Confidential Information in
strict confidence.
(b) to limit disclosure of Discloser’s Confidential
Information to Recipient’s own employees and contractors who have a need
to know Discloser’s Confidential Information for the purposes of this
EULA and who have been advised of, and are bound to observe and comply
with, Recipient’s obligations hereunder.
(c) not to otherwise disclose
any of Discloser’s Confidential Information to any third party.
(d) to
use the Confidential Information solely and exclusively in accordance
with the terms of this EULA in order to carry out its obligations and
exercise its rights under this EULA.
(e) to afford Discloser’s
Confidential Information at least the same level of protection against
unauthorized disclosure or use as Recipient normally uses to protect its
own information of a similar character, but in no event, less than
reasonable care.
and (f) to notify Discloser promptly of any
unauthorized use or disclosure of Discloser’s Confidential Information
and to cooperate with and assist Discloser in every reasonable way to
stop or minimize such unauthorized use or disclosure.
</li>
<li>
Notwithstanding anything to the contrary herein, in the event Recipient
is required to disclose any of Discloser’s Confidential Information
under the terms of a valid and effective subpoena or order issued by a
court of competent jurisdiction or by a demand or information request
from any regulatory authority, Recipient shall, unless prohibited by the
terms of a subpoena, order, or demand: (a) promptly notify Discloser of
the existence, terms, and circumstances surrounding such demand or
request.
(b) consult with Discloser on the advisability of taking
legally available steps to resist or narrow such subpoena, order, or
demand.
and (c) if disclosure of such Confidential Information is
required, exercise its reasonable best efforts to narrow the scope of
disclosure and obtain an order or other reliable assurance that
confidential treatment shall be accorded to such Confidential
Information.
To the extent Recipient is prohibited from notifying
Discloser of such a subpoena, order, or demand, by the terms of same,
Recipient shall exercise its reasonable efforts to narrow the scope of
disclosure.
</li>
<li>
Upon the termination of this EULA, Recipient shall promptly return (or
destroy if directed by Discloser) all of Discloser’s Confidential
Information in its possession or in the possession of any employee or
contractor of Recipient.
</li>
</ol>
</li>
<li>
<strong>Intellectual Property Rights.
</strong> Each Party acknowledges and
agrees that no intellectual property rights (including without limitation
any rights based in trademark, copyright, patent or trade secret law) are or
are intended to be transferred from one party to the other through this
EULA.
Neither Party shall receive, by virtue of this EULA or performance
under it any ownership interest in the other’s intellectual property.
Without limitation of the above, Company may use the name and logo of
Licensee solely in order to designate Licensee as a licensee or client, for
marketing purposes (e.g., on its website or email marketing materials).
</li>
<li>
<strong>Additional Representations and Warranties.
</strong> Each Party
represents that:
<ol>
<li>
to the extent it is a corporation, it is duly incorporated and in good
standing under the laws of the state of its incorporation.
</li>
<li>
it has the right, power, and authority to enter into this EULA, grant
the rights granted by it herein, and perform its obligations without any
additional consent or approval.
</li>
<li>
it has not relied and shall not rely upon the other Party for legal
advice regarding its compliance with applicable law.
</li>
<li>
the execution and performance of this EULA shall not violate or conflict
with the terms or conditions of any other agreement to which it is a
party or by which it is bound.
and
</li>
<li>
it shall, and shall ensure that its employees and contractors, comply at
its or their own expense, with applicable law, including, without
limitation, applicable law governing privacy and data security.
</li>
</ol>
</li>
<li>
<strong>No Warranty </strong> THE SDK IS BEING PROVIDED TO LICENSEE ON AN
“AS-IS” AND “AS AVAILABLE” BASIS.
THE COMPANY DOES NOT REPRESENT OR WARRANT
THAT THE SDK OR THE RESULTS OBTAINED FROM ITS USE SHALL MEET THE
REQUIREMENTS OR BUSINESS NEEDS OF LICENSEE OR ITS CUSTOMERS OR THAT THE
SDK’S OPERATION SHALL BE UNINTERRUPTED OR ERROR-FREE.
THE COMPANY MAKES NO
REPRESENTATIONS AND WARRANTIES UNDER THIS EULA, AND HEREBY EXPRESSLY
DISCLAIMS, ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED,
RELATING TO THE SDK, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE OR
NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
</li>
<li>
<strong>Limitations of Liability </strong> IN NO EVENT SHALL THE COMPANY,
WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE, BE LIABLE FOR: (A) ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES
(EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE COMPANY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO
THIS EULA.
OR (B) ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS EULA
TO THE EXTENT THAT THE AGGREGATE AMOUNT OF SUCH DAMAGES EXCEEDS THE GREATER
OF (X) ALL AMOUNTS PAID BY ONE PARTY TO ANOTHER DURING THE SIX MONTHS
PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE CLAIM AND (Y)
$1500.
</li>
<li>
<strong>Force Majeure.
</strong> Except for payment obligations, neither
Party shall have any liability for any failure or delay resulting from any
condition beyond the reasonable control of such Party, including
governmental action or acts of terrorism, earthquake or other acts of God,
labor conditions, and power failures.
Each Party shall promptly notify the
other Party upon becoming aware that any such event has occurred or is
likely to occur and shall use its best efforts to minimize any resulting
delay in or interference with the performance of its obligations under this
EULA.
</li>
<li>
<strong>Indemnification </strong>
<ol>
<li>
<strong>Indemnification by the Company </strong> The Company agrees to
indemnify, defend, and hold Licensee and its affiliates and their
respective directors, officers, employees, and agents (collectively
“Indemnified Licensee Persons”) harmless from and against any damages,
awards, judgments, settlement amounts, fines, penalties, losses, costs,
and expenses (including reasonable legal fees and expenses and costs of
investigation) and other liabilities (collectively, “Losses”) arising
out of any lawsuit, action, claim, demand, administrative action,
arbitration, or other legal proceeding brought or asserted against any
Indemnified Licensee Person as a result of or in connection with: (a)
Company’s breach of any covenant or representation herein, or (b) any
allegation that the use of the SDK infringes or misappropriates an
effective U.S.
patent a U.S.
registered trademark, a U.S.
copyright or a
trade secret.
provided, however, that the Company shall have no
obligation to any Indemnified Licensee Person under this
Section 13 to the extent such claim
arises from: (i) use of the SDK in a manner or for a purpose not
specifically authorized under this EULA.
(ii) any modification, change,
amendment, customization, or adaptation of the SDK not made wholly by
the Company or any of its designees.
(iii) any modification, change,
amendment, customization, or adaptation of the SDK made by the Company
at Licensee’s request.
(iv) Licensee’s failure to implement any
corrections, updates, or changes to the SDK provided by the Company.
or
(v) Licensee’s breach or alleged breach of
Section 2 of
this EULA.
If Licensee’s use of the SDK becomes (or is likely to become)
the subject of a third-party infringement claim, the Company may, at its
expense and option: (x) procure for Licensee the right to continue to
use the SDK.
(y) replace or modify the SDK so that it becomes
non-infringing.
or (z) immediately terminate this EULA.
</li>
<li>
<strong>Indemnification by Licensee.
</strong> Licensee agrees to
indemnify, defend, and hold the Company and its affiliates and their
respective directors, officers, employees, and agents (collectively
“Indemnified Company Persons”) harmless from and against any Losses
arising out of any lawsuit, action, claim, demand, administrative
action, arbitration, or other legal proceeding brought or asserted
against any Indemnified Company Person as a result of or in connection
with: (a) Licensee’s breach or alleged breach of any covenant or
representation herein or of Licensee’s own posted privacy policy (or
similar posted privacy statement).
or (b) any violation of applicable
law by Licensee or any other Indemnified Licensee Persons.
</li>
<li>
<strong>Notice and Defense.
</strong> For any claim under this
Section 13, (a) the indemnified party
shall provide the indemnifying party with prompt written notice of such
claim.
(b) the indemnifying party shall have the right and authority to
control and direct the investigation, defense, and settlement of the
claim.
(c) the indemnifying party shall have no liability for any
settlement or agreement entered into by the indemnified party without
the indemnifying party’s prior written consent.
and (d) the indemnified
party shall provide such cooperation and assistance as may be reasonably
requested by the indemnifying party in connection with the
investigation, defense, or settlement of the claim.
</li>
</ol>
</li>
<li>
<strong>Compliance with U.S.
Department of the Treasury Sanctions.
</strong>
<ol>
<li>
Licensee hereby certifies that Licensee will not, sell, export or
re-export, divert or transfer, or otherwise participate in any export
transaction involving the Service with individuals or entities listed in
the U.S.
Commerce Department's Table of Denial Orders, the U.S.
Treasury
Department’s list of Specially Designated Nationals or the U.S.
Department of State’s list of individuals debarred from receiving
Munitions List items and other applicable lists, e.g., the Entity List.
</li>
<li>
Licensee hereby certifies that Licensee will not violate U.S.
law with
respect to the U.S.
consolidated screening list including, but not
limited to, the following: (a) re-exporting / transferring U.S.
controlled items or technology to an individual or entity identified on
the U.S.
consolidated screening list.
(b) that no party to this
transaction is identified on the U.S.
consolidated screening list.
and
(c) Licensee is not owned or otherwise controlled by any individual or
entity on the U.S.
consolidated screening list.
</li>
<li>
Licensee hereby certifies that this transaction does not violate the
current U.S.
sanctions laws and regulations with respect to
Russia/Ukraine (which can be found here:
https://www.treasury.gov/resource-center/sanctions/Programs/Pages/ukraine.aspx),
including, but not limited to: (i) the use of this product for an
unauthorized purpose (e.g., use of the product for deep-water, Arctic
offshore, or shale projects that have the potential to produce oil in
the Russian Federation).
(ii) the product is not for use by an entity
identified on a U.S.
sanctions list.
and (iii) the product will not be
re-exported or transferred to the Crimea-Region of Ukraine.
</li>
</ol>
</li>
<li>
<strong>Miscellaneous </strong>
<ol>
<li>
<strong>Notices.
</strong> All notices, requests, and approvals required
by a Party under this EULA shall be in writing addressed/directed to the
other Party at the address set forth below.
All such notices, requests,
and approvals shall be deemed given upon the earlier of receipt of
facsimile or email transmission during the normal business day or actual
receipt thereof.
In the event of use of email notice, the sender shall
request a read receipt or also send a hard copy by regular mail to
ensure delivery.
All such notices, requests, and approvals shall be
addressed to the attention of the signatory parties, or such other party
that either party has designated in a separate writing as the
appropriate notice recipient:
</li>
<li>
<strong>Governing Law.
</strong> This EULA shall be governed by the laws
of the State of California without regard to choice of law principles.
</li>
<li>
<strong>Arbitration.
</strong> Any controversy or claim arising out of or
in any way connected with this EULA between the Parties shall be
resolved by one arbitrator, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and shall be
held in San Francisco County, California.
Judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
Costs of any arbitration shall be shared equally
by the parties to the arbitration.
</li>
<li>
<strong>Assignment.
</strong> Licensee may not assign or delegate any
rights or obligations under this EULA to any third party without the
Company’s prior written consent.
Notwithstanding the foregoing, either
Party may assign this EULA (along with all rights and obligations under
it) to any of its corporate affiliates, parents or subsidiaries, or in
conjunction with the sale or transfer of all or substantially all of its
assets associated with performance under this EULA, provided that the
assigning party shall provide timely notice of such assignment.
</li>
<li>
<strong>Amendment.
</strong> No modification of this EULA or waiver of
the terms and conditions hereof shall be binding upon the Parties unless
approved in writing by each of the Parties.
</li>
<li>
<strong>Relationship of the Parties.
</strong> The Parties agree they are
independent contractors to each other in performing their respective
obligations hereunder.
Nothing in this EULA or in the working
relationship being established and developed hereunder shall be deemed,
nor shall it cause, the Parties to be treated as partners, joint
venturers, or otherwise as joint associates for profit.
</li>
<li>
<strong>No Waiver.
</strong> Except as otherwise provided herein, the
failure of either Party to enforce at any time the provisions of this
EULA shall not be constituted to be a present or future waiver of such
provisions, nor in any way affect the ability of either Party to enforce
each and every such provision thereafter.
</li>
<li>
<strong>Severability.
</strong> If any provision of this EULA is held
invalid or unenforceable at law, such provision shall be deemed stricken
from this EULA and the remainder of this EULA shall continue in effect
and be valid and enforceable to the fullest extent permitted by
applicable law.
</li>
<li>
<strong>Entire Agreement.
</strong> This EULA is the entire agreement
between the Parties and supersede any and all prior understanding,
agreements, or representations by or between the Parties, written or
oral, which may have related to the subject matter hereof.
There are no
third party beneficiaries to this EULA.
</li>
<li>
<strong>Survival.
</strong> Sections 3, 5, 7-8, 10-11 and 13-14 shall
survive termination of this EULA, to the extent contemplated by their
terms.
</li>
</ol>
</li>
</ol>