Cumulus Developer Program
Terms and Conditions
This Cumulus Developer Program Agreement is entered into as of the Effective Date by and between the entity specified in the Developer signature block of the Application (“Developer”) and Canto GmbH (“Canto”), Alt-Moabit 73, 10555 Berlin, Germany.
The parties agree as follows:
1. Definitions of Terms Used in this License
A. "Affiliate": Any entity which controls, is controlled by or is under common control with Canto or Developer, as applicable.
B. “Cumulus Developer Program Agreement” or “Agreement”: The Cumulus Developer Program Terms and Conditions, the Cumulus Developer Program Application, and all attachments hereto, which shall include without limitation, all Cumulus Developer Program Addenda (referenced herein as “Addendum” or “Addenda”), which are incorporated herein by reference.
C. "Cumulus Developer Program": Canto's program for supporting third-party developers in the creation of Cumulus Developer Software.
D. "Cumulus Developer Software": Developer’s software, which works in conjunction with one or more Designated Product(s) and which add functionality and/or features to the Designated Product(s).
E. "Cumulus Software Development Kit” (the “SDK”): A set of tools and instructions allowing the user to write Cumulus Developer Software and which includes source code containing sample programs, header files, library files, written descriptions, and instructions, and any other materials provided under the terms of this Agreement.
F. "Designated Product": The Canto product(s) with which the Cumulus Developer Software is designed to work as set forth on the applicable Addenda.
G. "Development Site": The location at which Developer is licensed to use the SDK, as set forth on any applicable addenda.
H. “End User Agreement”: Canto’s then current license agreement provided by Canto and included with each copy of each Canto product, pursuant to which Canto grants an end user a license to use a copy of a Canto product.
I. "Marks”: the word marks “Canto,” “Cumulus,”, the Canto logo, and the Canto logos for the Designated Product(s) set forth in the applicable Addendum.
2. License Grant
A. Subject to the terms and conditions of this Agreement, Canto hereby grants Developer, a nonexclusive, non-sublicensable, non-transferable license to use the Cumulus Software Development Kit in the manner described in this Agreement and in accordance with the SDK documentation provided by Canto (“License”). No rights are granted to Developer Affiliates under this Agreement and Developer Affiliates are only granted a license as provided herein with the prior written consent of Canto.
B. Developer may create derivative works of the SDK by using and/or modifying the source code contained in the SDK designed for such use solely to create Cumulus Developer Software for the Designated Product in accordance with the terms and conditions of this Agreement. If Developer desires to create Cumulus Developer Software for any other Canto product, Canto and Developer must execute a separate Addendum for that product.
C. Developer may distribute Cumulus Developer Software for use in accordance with the End User Agreement for the applicable Designated Product which have been developed using the SDK if:
(i) the Cumulus Developer Software is only distributed (a) in object code form (not source code) and (b) subject to an end user license agreement at least as protective of Canto as this Agreement; and
(ii) the Developer is not in breach of this Agreement.
D. Canto shall, at its expense and control, defend Developer and its Affiliates against any and all third-party claims arising out of, allegedly or in fact, the use of source code included in the SDK that is integrated into the Cumulus Developer Software and used in Developer’s software programs (to the extent such source code in the form included in the SDK, without any modification or integration, would give rise to liability) and pay any amounts (including attorneys’ fees) awarded against Developer and its Affiliates as a result of such claims. Developer shall promptly notify Canto of any such claim.
3. License Restrictions
A. Developer may not share, transfer, release, distribute or otherwise disclose the source code for the SDK (or any portion thereof) to anyone except other registered developers whom Developer has confirmed as being included on the most recent list of registered developers approved by Canto in writing, to Developer Affiliates who have been approved by Canto in writing, or to consultants/independent contractors who have been approved by Canto in writing.
B. Developer shall not (and shall not allow any third parties to) modify, translate, reverse engineer, disassemble, or decompile the object code or tools provided in the SDK (except to the extent expressly permitted by applicable law notwithstanding a contractual obligation to the contrary). Notwithstanding anything to the contrary, Developer shall not modify or create any derivative work based upon, or incorporate into or with any other software the SDK or any part thereof for the purpose of developing functionality that is functionally equivalent to any Canto product, nor shall any derivative works be used or designed to use, and Developer shall prohibit its end users from using, such products to violate this Agreement or any End User Agreement. Further, Developer may not use the SDK to create Cumulus Developer Software which changes the language of the menus or screens of the Designated Product or otherwise localizes the Designated Product.
C. Developer may copy the source code, data and documentation licensed hereunder only under the following restrictions: (i) Copies of source code, data and documentation licensed hereunder are permitted only if strictly necessary for the creation of Cumulus Developer Software by Developer under this Agreement; (ii) all copies must be used only at Developer location set forth in the Cumulus Developer Program Application Form, and iii) must include all notices and markings contained in the original provided by Canto. Canto may impose additional restrictions on copying which Developer shall agree to follow. No other copying of any kind is authorized. Developer warrants that all copies of the source code, data and documentation licensed hereunder will remain under its control and it will take all reasonable precautions to safeguard the copies against unauthorized use.
D. This Agreement does not grant Developer the right to distribute Canto products with Cumulus Developer Software. Any distribution of any Canto product without the prior written consent of Canto is strictly prohibited.
E. Limits on Localization. Each Designated Product is developed in a specific language (or set of languages), which, hereinafter, is referred to as the "Original Language." Localization refers to the process of developing Cumulus Developer Software to support a language other than the Original Language. Localization of the Designated Product by Developer is expressly prohibited under this Agreement.
F. Developer shall not engage in, attempt to engage in, or assist a third-party in any activity which hinders, disrupts, defames or otherwise damages the Cumulus Developer Program and/or Canto products.
G. Developers shall not develop Cumulus Developer Software, that would cause a breach of the terms of the End User Agreement for the Designated Product.
4. Trademark Usage.
A. Usage by Developer. Subject to the terms and conditions of this Agreement, Canto hereby grants to Developer the non-exclusive, non-transferable, non-sublicenseable and terminable right to use the Cumulus Mark and the name of the Designated Product during the Term of this Agreement solely in connection with Developer’s documentation, marketing and promotion of the Cumulus Developer Software. Developer agrees that all use of the Marks, and all goodwill arising out of such use, shall inure solely to the benefit of Canto. Developer agrees to comply with Canto’s trademark and logo policies and usage guidelines as may be updated by Canto from time to time. Developer shall leave in place all Marks, labels and other trade designations placed by Canto on the SDK and all other Canto products and shall not: (a) use the Cumulus Mark or the name of the Designated Product in a generic or non-trademark manner; (b) alter any Mark; (b) use any Mark for any purpose other than those contemplated by this Agreement; (c) register or use as its own trademarks any of the Marks and (c) add to the SDK any trademark, logo, label, marking or other designation without the prior written consent of Canto. Developer shall not at any time challenge or impair, or assist others in challenging or impairing, Canto’s Marks or other proprietary rights. Developer shall not indicate that the Cumulus Developer Software was produced by or on behalf or approved by Canto or suggest that Developer has any legal connection to, joint venture or partnership with Canto. Canto reserves the right to review and reject any use of the Marks by Developer at any time. Should Canto reject Developer’s use(s), Developer shall immediately cease use, production and/or distribution of the rejected use(s).
B. Documentation. The documentation for Cumulus Developer Software shall include the following statement in a conspicuous location, including all such Marks referenced in Developer documentation: “Canto, Canto logo, and Cumulus are registered trademarks of Canto, Inc.”
C. Usage by Canto. Developer authorizes to Canto the non-exclusive terminable right to utilize its trade names, trademarks, and logos during the term of this Agreement for the purpose of representing Developer as a member of the Canto Partner Program. Canto agrees that all use of the such marks, and all goodwill arising out of such use, shall inure solely to the benefit of Developer.
D. Developer may not identify its Cumulus Developer Software by using a name, which is associated with developer programs for other products. For instance, “Plug-in”, “Xtra”, and "Add-in" may all be associated with other developer programs and in some cases are trademarks of other companies.
5. Reservation of Rights
Except as expressly licensed herein, Canto, its Affiliates and their licensors retain all right, title and interest in and to the SDK, all copies thereof and all related documentation and materials. The SDK is protected under national and international copyright, trademark, trade secret and/or patent laws. The License granted herein does not constitute a sale of the SDK or any portion thereof.
6. Labels, Documentation, Packaging, and Advertising
A. Developer shall not remove any copyright notices or proprietary legends contained within the SDK licensed hereunder.
B. Developer shall embed the following copyright notice in the source code, object code and documentation for all Cumulus Developer Software written and shall also include the notice on the label of each Developer volume containing Cumulus Developer Software: "Portions of this software are copyrighted by Canto. All rights reserved." Canto may specify additional copyright information to be included. Developer will incorporate such additional information within thirty (30) days of written notice from Canto.
C. Developer shall conspicuously indicate in all documentation, packaging, advertisements and promotional activities (including, but not limited to trade shows) for Cumulus Developer Software that Cumulus Developer Software is for use with the Designated Product and can only be used with a valid, registered copy of the Designated Product and in accordance with the applicable End User Agreement.
D. Developer shall include a manual or other supporting documentation, which may be electronically distributed, with every Developer product containing Cumulus Developer Software. The manual shall set forth the following in a conspicuous manner the following: “THIS SOFTWARE PACKAGE HAS NOT BEEN WRITTEN, REVIEWED, APPROVED OR TESTED BY CANTO.”
E. Canto may, during the term of this Agreement, require revisions or additions to the notices to be placed in Developer's manual or other supplemental documentation. Developer shall incorporate such revisions or additions to the notices required herein to those manuals or supplemental documentation which have not yet been publicly distributed within thirty (30) days of written notice from Canto, unless a longer period is mutually agreed upon by both Parties.
F. Developer agrees to promote the use of Canto products in connection with Cumulus Developer Software and to refrain from making any negative statements concerning Canto, Canto Affiliated Companies, or Canto products and features in Canto products.
7. Effective Date and Term
This Agreement shall not become effective until executed by Canto. The term of this Agreement shall be for one (1) year from the Effective Date (“Term”), renewable annually for additional one (1) year Terms, provided that Developer pays the then applicable license fee before the end of the applicable Term of the Agreement.
8. Confidentiality
A. Except as expressly permitted in this Agreement, Developer shall keep confidential and shall not use or disclose to any third party (including, without limitation, Developer Affiliates, consultants or independent contractors) the SDK, source code, object code header files, technology, ideas, algorithms or information derived from the SDK, the use thereof, or otherwise disclosed by Canto to Developer, except to the extent that Developer can document that: (i) such information is generally available for use and disclosure by the public without any charge or license and without a breach of an obligation of confidentiality to Canto; (ii) such information was in the possession of Developer without an obligation of confidentiality prior to disclosure by Canto; (iii) Developer rightfully obtained such information from a third party without restriction as to use or disclosure or the breach of an obligation of confidentiality to Canto; or (iv) Developer independently develops such information without use of or access to the SDK, technology, ideas, algorithms or information derived from the SDK, the use thereof, or otherwise disclosed by Canto to Developer. If Developer is legally compelled to disclose such information, Developer shall give Canto reasonable advance notice of any such disclosure and shall cooperate with Canto in protecting against any such disclosure. Notwithstanding the foregoing, Developer may disclose such confidential information to its employees, contractors and agents who are bound in writing by restrictions regarding disclosure comparable with and no less protective of Canto’s confidential information as this Agreement and only to the extent necessary for the creation of Cumulus Developer Software by Developer for the Designated Product(s). Developer agrees that, due to the unique nature of Canto’s confidential information, the unauthorized disclosure or use of such information may cause irreparable harm and significant injury to Canto, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at law. Accordingly, Developer agrees that Canto, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement, without the necessity of posting any bond or other security.
B. Developer agrees that, except as otherwise provided herein, it will not disclose to Canto (or to any Canto Affiliate) any information, which is confidential, trade secret or otherwise proprietary information of Developer or any third party (including, but not limited to, any documents, ideas, techniques, concepts or source code) without the parties entering into a separate non-disclosure agreement for the disclosure of such information. Developer acknowledges that in the absence of a properly executed nondisclosure agreement which obligates Canto to treat information provided by the Developer to Canto as confidential, Canto shall have no obligation whatsoever to treat information provided by the Developer as confidential. Developer acknowledges that Canto and its Affiliates are free to enter into any area of development, including areas, which may compete with Developer’s products, and Canto has no obligation to inform Developer of Canto’s development plans at any time.
9. Copies of Cumulus Developer Software
Within thirty (30) days of release and/or sale of Cumulus Developer Software (or updates to Cumulus Developer Software) for a Designated Product, Developer shall provide Canto with copies of the object code of the Cumulus Developer Software (or update to the Cumulus Developer Software) and the accompanying manuals and packaging for the purposes of archiving and monitoring Developer's compliance with the terms of this Agreement.
10. License Fees
As compensation for the rights, privileges and licenses granted herein, Developer shall pay to Canto the fee stated on the Cumulus Developer Program Application Form. All amounts payable hereunder by Developer shall be paid without deduction or withhold for or on account of any present or future tax, levy, impost, fee, assessment, deduction or charge by any taxing authority.
11. Modification
Except as provided herein, the software and other materials licensed hereunder may not be modified by Developer without the prior written permission of Canto. Any modifications, whether authorized or not, will continue to be subject to the terms and conditions of this Agreement and any derivative works of the SDK shall be owned by Canto.
12. Disclaimer of Warranty
CANTO AND ITS AFFILIATED COMPANIES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING THE SDK. CANTO AND ITS AFFILIATED COMPANIES DISCLAIM ALL WARRANTIES RELATING TO THE SDK, INCLUDING ANY WARRANTIES AS TO ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THE SDK IS PROVIDED ON AN "AS IS" BASIS AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR COLLATERAL ARE DISCLAIMED, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, COMPATIBILITY, OR THAT THE SOFTWARE IS ERROR-FREE, OR THAT ERRORS CAN OR WILL BE CORRECTED. NO PERSON IS ALLOWED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION OF THE SDK OR ANY OTHER CANTO PRODUCT, OTHER THAN AS PROVIDED IN THE END USER AGREEMENT. DEVELOPER SHALL MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED ON BEHALF OF CANTO.
13. Indemnification by Developer
Developer shall defend, indemnify and hold Canto and its Affiliates harmless from any and all claims, damages and costs (including attorneys’ fees) arising out of, allegedly or in fact, the use of Developer's software programs containing Cumulus Developer Software. Canto shall promptly notify Developer of any such claim.
14. Updates
Canto may provide Developer with updates to the SDK. All terms and conditions of this Agreement shall apply in the event an update is provided to Developer without a separate written agreement between Canto and Developer for such update.
15. Breach and Termination
Either party may terminate the Agreement with proper notice given in writing one month before the end of the contractual year. Canto may, by giving five (5) calendar days written notice to Developer, terminate this Agreement upon the occurrence of any breach of the terms of this Agreement. Any breach of an End User Agreement shall be deemed a breach of this Agreement. Waiver by Canto of any breach by Developer shall not be deemed to be a waiver of any other or subsequent breach. The rights of Canto under this clause are in addition to any other rights and remedies provided by law or under this Agreement. Upon termination of this Agreement by breach of Developer, the License granted herein and all rights granted to Developer, including distribution of the Cumulus Developer Software, hereunder shall immediately cease. Upon termination of this Agreement for any reason other than breach by Developer, the License granted herein and all rights granted to Developer shall cease, except that Developer shall have six (6) months from date of termination to distribute the Cumulus Developer Software which is already in inventory. Upon termination for any reason, Developer shall promptly return to Canto the SDK and all other Canto confidential information, or certify its destruction, at the sole discretion of Canto. The provisions of Sections 1, 5, 8, 12 13, 15, 16, 18 and such other provisions which by their nature continue alter termination, shall survive termination of this Agreement.
16. Limitation of Liability.
REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL CANTO OR ITS AFFILIATED COMPANIES BE LIABLE TO A DEVELOPER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST TIME, LOST SAVINGS, LOST DATA, LOST FEES, OR EXPENSES OF ANY KIND ARISING FROM INSTALLATION OR USE OF THE SDK IN ANY MANNER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. IN ANY EVENT, CANTO AND ITS AFFILIATED COMPANIES’ LIABILITY RELATING TO THE SDK OR THIS AGREEMENT SHALL BE LIMITED TO THE MONEY PAID BY DEVELOPER TO CANTO FOR ENTRY INTO THE CUMULUS DEVELOPER PROGRAM. THESE LIMITATIONS WILL APPLY EVEN IF CANTO HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES. SOME JURISDICTIONS, STATES, OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATION OR EXCLUSION INCLUDED IN THIS LICENSE AGREEMENT MAY NOT APPLY TO PARTICULAR DEVELOPERS.
17. Export Restrictions
The SDK may be subject to export control laws of the United States, as well as to export control laws of other jurisdictions applicable to Developer. Developer shall comply with all such applicable laws and shall not ship, transfer, or export the SDK into any country, or make available or use the SDK, in any manner prohibited by law.
18. General Provisions
This Agreement may not be assigned, transferred or encumbered, nor the rights hereunder sublicensed, by Developer without the prior written consent of Canto. Canto may assign this Agreement in whole or in part, or any rights hereunder, without the prior written consent of Developer. The parties agree that this Agreement is personal to the existing owners of Developer (i.e., any material change in ownership including any transfer of stock or equity interest to any third party, or any merger or other reorganization of Developer shall be an assignment for purposes of this Agreement). Any notice required by this Agreement shall be in writing and shall be deemed given and effective when delivered personally or by fax or sent by an internationally recognized courier service to Canto GmbH, Alt-Moabit 73, 10555 Berlin, Germany, or to Developer at the address and/or fax number set forth above. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of California, without regard to conflicts of laws provisions thereof. The provisions of the United Nations Convention on the International Sales of Goods are hereby disclaimed and excluded. All disputes arising under or relating to this Agreement shall be resolved exclusively in the courts sitting in and for San Francisco County, California, USA, and Developer hereby irrevocable waives any objection to the exercise of such court’s jurisdiction in such proceedings, provided however, that Canto reserves the right to bring suit against Developer in any court with competent jurisdiction over Developer. Developer recognizes and agrees that there may be no adequate remedy at law for a breach of this Agreement, that such a breach may irreparably harm Canto, and that Canto is entitled to seek equitable relief (including, without limitation, injunctions) with respect to any breach or potential breach in addition to any other remedies. The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses including, without limitation, reasonable attorneys’ fees. Any amendments of or waivers with respect to this Agreement shall be effective only if made in writing and signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written, oral, and other agreements and communications relating to the subject of this Agreement. Canto and Developer are acting hereunder as independent contractors. Nothing contained herein shall be deemed or construed by the parties, nor by any third party, as creating a relationship of employer and employee, principal and agent, partnership, or joint venture. Each party recognizes that the warranty disclaimers and the liability and remedy limitations in this Agreement are material elements of this Agreement and they should be effective even when such warranty disclaimers and liability and remedy limitations would cause this Agreement to fail of its essential purpose. The parties confirm that this agreement and all related documentation will be in the English language. Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue anglaise.
|