PapayaMobile, Inc.
License and Distribution Agreement
BY CHECKING THE BOX MARKED "I ACCEPT," YOU AGREE TO USE THE LICENSED TECHNOLOGY, PAPAYAMOBILE SERVICE, AND/OR INTEGRATION SOURCE CODE SOLELY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LICENSE AND DISTRIBUTION AGREEMENT (THIS "AGREEMENT"), AND YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. YOU WARRANT THAT YOU ARE AT LEAST EIGHTEEN YEARS OLD AND THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS. IF YOU ACCESS OR USE THE LICENSED TECHNOLOGY, PAPAYAMOBILE SERVICE, AND/OR INTEGRATION SOURCE CODE ON BEHALF OF A COMPANY, PRINCIPAL OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE LICENSE AND DISTRIBUTION AGREEMENT AND THAT IT IS FULLY BINDING UPON THEM. THE TERM "YOU" OR "LICENSEE" WILL REFER TO YOU OR TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENSE AND DISTRIBUTION AGREEMENT, YOU MAY NOT ACCESS OR USE THE LICENSED TECHNOLOGY, PAPAYAMOBILE SERVICE, OR INTEGRATION SOURCE CODE. WE RESERVE THE RIGHT TO AMEND THIS AGREEMENT AT ANY TIME. YOUR CONTINUED USE OF THE LICENSED TECHNOLOGY, PAPAYAMOBILE SERVICE, OR INTEGRATION SOURCE CODE CONSTITUTES YOUR ACCEPTANCE OF ANY AMENDMENT OR MODIFICATION TO THIS AGREEMENT.
1. Scope of the Agreement
For the purposes of this Agreement, the terms set forth below shall be defined as follows:
1.1.“Advertisement(s)” means any and all advertisements, offers, promotions, and the like presented or delivered by Tapjoy occurring within the Tapjoy Offerwall.
1.2.“Application” has the meaning as set forth in Section 3.1.
1.3."Authorized Platforms"means any Platform PapayaMobile has declared the Licensed Technology to be applicable to, as may be updated by PapayaMobile from time to time upon written notice to Licensee, including but not limited to Android OS 1.5 and future versions of the Android OS that are designated by PapayaMobile, and iOS 4.0 and future versions of the iOS that are designated by Papaya Mobile.
1.4."Confidential Information" means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked "Confidential" or "Proprietary" or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Without limiting the foregoing, the Licensed Technology, Integration Source Code, and End User Data shall be PapayaMobile's Confidential Information; and all reports provided pursuant to Section 5.2 shall be the Confidential Information of both parties.
1.5."End User" means a person that is granted a license to use the Game for their own use and not for resale or distribution of the Game and who uses the PapayaMobile Service with individually assigned identification information.
1.6."End User Data" means all data related or connected to End Users collected by PapayaMobile through the End Users' use of the Game, Licensed Technology or PapayaMobile Service.
1.7. “Exclusivity Period”has the meaning as set forth in Section 2.9.
1.8."Game" means any version, Upgrades or Sequels of one or more games Licensee desires to exploit using the Licensed Technology, each game being registered with PapayaMobile via PapayaMobile's website.
1.9."Integration Source Code" means the source code provided by PapayaMobile to integrate and compile and/or link the Game with the PM Software in Object Code form.
1.10."Intellectual Property Rights"means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.11. “Launch” means the date on which Licensee actually publicly launches the Game.
1.12."Licensee" means the company or individual indicated herein above and which has registered with PapayaMobile on http://papayamobile.com/sdk/ or http://papayamobile.com/engine/.
1.13."Licensed Technology" means the proprietary PM Software specifically for Authorized Platforms as well as Upgrades, which may, from time to time, at PapayaMobile's sole discretion, be made available to Licensee and which are not marketed as distinct stand-alone programs.
1.14."Net Receipts" means any revenue accruing as a result of monetizing a Game or parts thereof through or with the help of the Licensed Technology less (i) withholding and other applicable and actually paid taxes (other than income tax or similar tax), (ii) actual, reasonable, out-of- pocket third-party billing and payment processing costs.
1.15."papayas" means the internal currency of the PapayaMobile Service, to be employed, e.g., for purchase of virtual goods within the Papaya Network.
1.16."PapayaMobile" means PapayaMobile Inc., a Delaware corporation with offices at 169 11th Street, San Francisco, CA 94103 and its affiliates and subsidiaries.
1.17."PapayaMobile Service" means the service provided to End Users by enabling the Game with the Licensed Technology, including play for a certain number of papayas. End Users may have to enter into a EULA with PapayaMobile. PapayaMobile may at its sole discretion define the scope of the PapayaMobile Service and it may include third party products and services.
1.18."Platform" means any microprocessor-based devices or technologies.
1.19."PM Software" means all or any of a) the Papaya Software Development Kit (SDK), b) Papaya Game Engine c) Social SDK, and d) Papaya Mobile Splash, each specifically for Authorized Platforms, all of which are proprietary computer programs developed by PapayaMobile. Furthermore, the PM Software may be briefly described as follows: if implemented, the PM Software extends the Game with certain connected features, including but not limited to server-based high-score lists, friends lists, various options to an End User to challenge other End Users as well as functionality to facilitate the aforementioned main functionalities. The PM Software also handles communication with the server hosted by PapayaMobile or its partners. The PapayaMobile server stores data provided by the PM Software, coordinates users and challenges, communicates with external social communities such as Facebook, provides analysis tools and handles financial transactions and billing.
1.20."Royalty" has the meaning as set forth in Section 5.
1.21."Sequel" means a new product with an original storyline based on the Game's Intellectual Property.
1.22. “Tapjoy Offerwall” has the meaning as set forth in Section 2.9.
1.23. “The Games Academy” means the PapayaMobile’s accelerator program for mobile social game developers, in which PapayaMobile may provide developers with office space and support.
1.24."Territory" means the world.
1.25."Upgrades" means any improvements, enhancements, updates, fixes and other changes for a particular software package.
1.26."Virtual Currency Royalty" has the meaning as set forth in Section 5.
2. Grant of License; License Restrictions
2.1. Subject to the terms and conditions of this Agreement, PapayaMobile hereby grants a limited, revocable, non-exclusive, non-sublicensable (except as expressly provided herein), and non-transferable right and license to use the Licensed Technology as delivered by PapayaMobile solely as integrated with the Game via the Integration Source Code on the Authorized Platforms in the Territory.
2.2. The grant of rights under 2.1 shall include (i) the right to reproduce and store the Licensed Technology and Integration Source Code in object code form only on all data carriers irrespective of the technical format, (ii) the mobile rights to the Authorized Platforms, (iii) the right to publish, distribute, perform, make publicly available, broadcast and retransmit the Licensed Technology and Integration Source Code solely as object code integrated with the Game, and (iv) to use the Licensed Technology and Integration Source Code to connect the Game to the PapayaMobile Service.
2.3. Subject to the terms and conditions of this Agreement, PapayaMobile furthermore hereby grants to Licensee a limited, revocable, non-exclusive, non-sublicensable (except as expressly provided herein), non-transferable right and license to use the Integration Source Code solely to the extent necessary for the integration of the Game with the Licensed Technology and/or connection of the Game with the PapayaMobile Service as set forth herein.
2.4. Notwithstanding anything to the contrary herein, any and all elements of the Licensed Technology and Integration Source Code are only licensed to Licensee to use in whole as a part of the Game and must not be used or exploited by Licensee separately. Licensee may sublicense the Licensed Technology only as an integral part of the Game.
2.5. Except as expressly set forth herein, Licensee shall not (i) work around any technical limitations in the Licensed Technology or any other material delivered by PapayaMobile, (ii) reverse engineer, decompile or disassemble the Licensed Technology, except and only to the extent that applicable law expressly permits such activity in spite of this limitation, (iii) change the Licensed Technology or combine it or any parts thereof with other productions than the Game, to shorten, divide, rearrange, remove, create derivative works of, add to or insert it or any elements thereof, (iv) publish or copy, either directly or indirectly, the Licensed Technology, (v) rent, lease or lend the Licensed Technology, or (vi) transfer or assign or sub-license the Licensed Technology or this Agreement to any third party.
2.6. Sections 2.4 and 2.5 apply analogously to the Integration Source Code. However, Licensee may change the Integration Source Code with respect to such elements that are merely provided as installation information for the purpose of the insertion of Licensed Technology in the Game.
2.7. Subject to the terms of this Agreement, Licensee hereby grants a royalty- free, paid up, non-exclusive, sub-licensable, worldwide, nonexclusive, perpetual right to PapayaMobile to use Licensee's name and logo as well as the Game's title, logo, sequences, screenshots, or other parts thereof solely for promotional purposes and other commercial activities in connection with the PapayaMobile Service and in furtherance of the parties' interests during the term of this Agreement.
2.8. PapayaMobile may, in its sole and absolute discretion, offer to assist Licensee in the integration of the Licensed Technology into the Game. If such integration is carried out by PapayaMobile, Licensee's material (software code, graphics etc.) provided to PapayaMobile in this respect may only be used by PapayaMobile for services connected to the integration. Section 2.7 shall remain unaffected. Licensee shall obtain PapayaMobile's prior written approval before launching any Game, which approval shall not to be unreasonably withheld.
2.9 Tapjoy Offerwall. If Licensee elects to use an offerwall with the Licensed Technology for a Game on a platform other than (i) iOS or (ii) any other platform (i.e. Android, Windows Phone and HTML5) where incentivized advertising is banned or substantially reduced on such platform, then the Licensee agrees to exclusively use the Tapjoy services and software (“Tapjoy Offerwall”) for such Game for a period of 18 months from the Launch (“Exclusivity Period”). Licensee agrees to display all Advertisements and use the Tapyjoy Offerwall in accordance with this Agreement and in accordance with the terms and conditions that Tapjoy provides covering such Tapjoy Offerwall which can currently be found at https://dashboard.tapjoy.com/tos-publisher.html. If there is an actual conflict between this Agreement and any terms and conditions provided by Tapjoy, the terms of this Agreement will govern the Tapjoy Offerwall. Licensee agrees to comply with any placement and delivery requirements, any requirements to implement code and any technical specifications that are provided by Tapjoy and/or PapayaMobile at any time to enable proper display of the Advertisements. Licensee will be solely responsible for any and all costs Licensee incurs for the display of Advertisements in accordance with the specifications and for any programming related to the same which Licensee elects to undertake. Licensee may only use the Tapjoy Offerwall as provided by Tapjoy without modification. Licensee shall not (i) modify or alter the content, text or appearance of any Advertisements, or aggregate one or more Advertisements with other offers; or (ii) use any other services that provide End User virtual good or currency in exchange for acting on promotional offers or other services similar to the Tapjoy Offerwall in connection with a Game. Licensee hereby grants to PapayaMobile a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide and perpetual right and license to reproduce, display, distribute, create derivative works from and otherwise use any End User Data provided by Licensee’s use of the Tapjoy Offerwall. Licensee agrees to provide PapayaMobile with reports reasonably requested by PapayaMobile.
2.10. Each Party acknowledges that it obtains no Intellectual Property Rights or licenses by this Agreement except for those expressly granted herein.
3. Games Academy Participation
3.1. Licensee may choose to participate in The Games Academy by submitting an application (“Application”) to The Games Academy program through the following link http://papayamobile.com/academy/. By submitting your Application, you acknowledge and agree that your Application shall be subject to the terms and conditions of this Agreement. If you do not agree to these terms, you may not submit an Application. Licensee’s acceptance into The Games Academy is subject to PapayaMobile’s approval which is determined in PapayaMobile’s sole discretion. Furthermore, Licensee acknowledges and agrees that any Game developed and/or created with or in connection with the Licensed Technology and/or the Integration Source Code through participation or in connection with The Games Academy shall be subject to the terms and conditions of this Agreement.
3.2. As an accepted participant in The Games Academy, Licensee may have access to features that PapayaMobile may, in its sole discretion, make available through the Games Academy such as classes and/or instructors. In addition, PapayaMobile may select certain Games from The Games Academy accepted participants to received certain benefits and/or prizes which PapayaMobile may establish in its sole discretion.
3.3. You acknowledge that PapayaMobile and/or The Games Academy instructors may be working on games or other projects which are similar to or competitive with the materials described in your Application, or that PapayaMobile and/or The Games Academy instructors may be working with others on such games or projects. You agree that the submission of your Application, our evaluation of your Application, your participation in The Games Academy or your development of a Game, will not limit or prohibit in any way PapayaMobile and/or The Games Academy instructors from creating and/or similar games and/or projects. PapayaMobile expressly reserves the right to create, make, develop, have created, made and/or developed any games and/or pursue any projects.
4. Licensee's Obligations
4.1. Licensee shall register any Game selected for use with the Licensed Technology with PapayaMobile prior to any publication of PapayaMobile-enabled Games. The PapayaMobile Service is not operational for Games not registered or activated accordingly. Licensee shall register each Sequel to a Game.
4.2. Licensee shall insert the Licensed Technology as delivered by PapayaMobile into the Game by using the Integration Source Code and use its best reasonable efforts to ensure full compatibility of the Game and the Licensed Technology.
4.3. Where applicable, Licensee shall ensure that the features of the Game for the Android platform shall be, at minimum, as they appear on the iOS version of the Game (“Feature Parity”). Failure to ensure Feature Parity shall be deemed a material breach of this Agreement.
4.4. Licensee shall ensure that the Game(s) will not enable any incentivized advertisements that connects to a competing Papaya Mobile social networking platform or service, including but not limited to, DeNA (Mobage), GREE (OpenFeint), and Scoreloop.
4.5. Where Licensee utilizes the Papaya Game Engine, Licensee shall grant Papaya Mobile the right to enable cross promotional advertising in the Game, to be determined at the sole and absolute discretion of Papaya Mobile.
4.6. Licensee shall market and distribute the Game, including the Licensed Technology, on Authorized Platforms and to refer End Users to PapayaMobile through the Game.
4.7. Licensee shall be responsible for its compliance with respect to any laws and regulations pertaining to the Game anywhere in the Territory including, in particular, any laws and/or regulations for the protection of minors.
4.8. Licensee shall integrate any Upgrades provided by PapayaMobile into the Game in due course.
4.9. Licensee shall promptly inform PapayaMobile of (i) any material changes made to an approved Game and (ii) any unauthorized access to the Licensed Technology or Integration Source Code.
4.10. Prior to being granted use of Licensed Technology or Authorized Platforms, Licensee shall provide PapayaMobile with accurate and truthful customer information. Accurate and truth customer information that the Licensee shall provide, and that PapayaMobile may request, includes: name; beneficial owner (in the case of a corporation or limited liability company); date of birth (for individuals); physical business address, and identification. For purposes of this paragraph, the term "identification" for a U.S. person is a taxpayer identification number (TIN) (or evidence of application for one). For purposes of this paragraph, an identification for a non-U.S. person is one or more of the following: a TIN; a passport number and country of issuance; an alien identification card number; or a number and country of issuance of any other unexpired government-issued document evidencing nationality or residence and bearing a photograph or similar safeguard. A TIN includes a Social Security number, individual taxpayer identification number, or employer identification number. PapayaMobile reserves the right, in its sole discretion, to require identifying information in addition to the items above for certain Licensees and Authorized Platforms.
5. Royalties, Payment Conditions
5.1. Where Licensee utilizes the Papaya Game Engine and the Tapjoy Offerwall, PapayaMobile shall pay to Licensee a revenue share, as determined by PapayaMobile in its sole and absolute discretion, of Net Publisher Revenues received hereunder (the "Royalty"). For purposes of this Agreement,"Net Publisher Revenues" means amounts actually paid by an advertiser to PapayaMobile due to download of apps or offers from such advertiser by End Users via a Game hereunder, less reasonable costs for payment processing, taxes, and the like. All payments hereunder shall be made in US Dollars. Currencies other than US Dollar will be converted to US Dollar at the conversion rates published by the European Central Bank on the day of the month in which such revenue was received. PapayaMobile shall have the right to deny and withhold Royalties based on fraudulent activities, such determination to be made in PapayaMobile's sole and absolute discretion, including but not limited to the use of automated processes such as "bots" or "scripts"
5.2. PapayaMobile shall pay to Licensee a revenue share, as determined by PapayaMobile in its sole and absolute discretion, of Net Virtual Currency Revenues received hereunder (the "Virtual Currency Royalty"). For purposes of this Agreement,"Net Virtual Currency Revenues" means amounts actually generated from the spending of virtual currency within the Licensee's game by End Users via a Game hereunder, less reasonable costs for payment processing, taxes, and the like. All payments hereunder shall be made in US Dollars. Currencies other than US Dollar will be converted to US Dollar at the conversion rates published by the European Central Bank on the day of the month in which such revenue was received. PapayaMobile shall have the right to deny and withhold Virtual Currency Royalties based on fraudulent activities, such determination to be made in PapayaMobile's sole and absolute discretion, including but not limited to the use of automated processes such as "bots" or "scripts".
5.3. PapayaMobile shall provide a royalty report within thirty (30) days after the end of each calendar month in which such Royalty or Virtual Currency Royalty is due. If Licensee raises no objections to the report within six (6) weeks after receipt, the respective report shall be deemed correct and final.
5.4. Any and all payments under this Agreement by PapayaMobile to Licensee shall be made within thirty (30) days after the end of the calendar month in which such payments are due via PayPal in US Dollars to the account designated by Licensee and shall not include processing fees or costs.
5.5. Licensee shall not be entitled to deduct or set off any claims against the amounts payable by PapayaMobile unless they have been expressly accepted by PapayaMobile.
6. Term and Termination
6.1. This Agreement shall commence on the Effective Date and continue unless earlier terminated in accordance with the provisions hereof.
6.2. PapayaMobile is entitled to limit the Territory to certain countries upon prior written notice to Licensee if and when such limitation is required to comply with specific laws, regulations and/or other administrative or governmental requirements or guidelines in distinguishable parts of the Territory.
6.3. Licensee may terminate this Agreement with immediate effect by notice to PapayaMobile if and when PapayaMobile is in breach of any of its obligations under this Agreement and has failed to rectify such breach within thirty (30) days of having received written notice of such breach and the intention of Licensee to terminate this Agreement if the breach is not rectified (or, if such breach is not capable of being rectified within such time, shall fail to commence to rectify such breach within such time or thereafter to diligently rectify such breach as soon as practicable).
6.4. PapayaMobile may terminate this Agreement with immediate effect upon notice to Licensee for any reason or no reason.
6.5. Without limiting the foregoing, PapayaMobile may terminate this Agreement with immediate effect if the Game itself or its use of the Licensed Technology, is in contravention of any applicable law. In such event PapayaMobile may at its option disable certain parts of the Licensed Technology before terminating the Agreement and/or terminate the grant of License in regard to certain territories only. The same shall apply if Licensee is acquired or controlled by a direct competitor of PapayaMobile.
6.6. Upon termination of this Agreement, (i) all rights granted to Licensee hereunder shall immediately cease and shall revert to PapayaMobile, and Licensee shall immediately cease servicing (selling, distributing marketing, promoting, linking or in any other manner using) the PapayaMobile enabled Game entirely or in parts as well as any of PapayaMobile's trademarks, (ii) all rights granted to PapayaMobile hereunder shall immediately cease and shall revert to Licensee, and PapayaMobile shall immediately cease using Licensee's name or trademarks or any elements of the Game, (iii) Licensee shall immediately return to PapayaMobile all copies of the Licensed Technology, and any versions thereof and any materials transmitted to Licensee by PapayaMobile under this Agreement and confirm in writing that it has retained no copies, (iv) Licensee shall immediately delete all integrated parts of the Licensed Technology and any versions thereof in the Game, and (v) each Party shall return to the other Party all copies of Confidential Information disclosed by such other Party, unless such information is necessary for the further exploitation of the Licensed Technology by PapayaMobile.
6.7. The following Sections and any unsatisfied payment obligations shall survive any termination or expiration of this Agreement: Sections 6.7 and 7-13.
7. Ownership, End User Data
7.1. Licensee acknowledges and agrees that, as between PapayaMobile and Licensee, PapayaMobile owns all right, title, and interest in and to the End User Data, Licensed Technology, Integration Source Code, PapayaMobile Service (excluding the Game) (collectively, the "PapayaMobile Property"), and the Intellectual Property Rights therein and thereto, and nothing in this Agreement will confer on Licensee any right of ownership or interest in the same. In the event ownership of any of the PapayaMobile Property or modification thereto vests in Licensee, Licensee hereby assigns to PapayaMobile all its right, title and interest in and to all intellectual property and other rights (and where relevant such assignment is by present assignment of future copyright) in the foregoing, and waives any and all moral rights in the foregoing to which it may now or in the future be entitled under the laws of any jurisdiction
7.2. Licensee hereby authorizes Papaya Mobile to repackage the Game, as necessary, in order to improve the accuracy of the End User Data. Such repackaging shall include, without limitation, unpacking the APK; adding a configuration file into the APK so as to trace the source of the APK; packing the APK; and, signing the APK with Papaya Mobile's digital key.
7.3. PapayaMobile acknowledges and agrees that, as between Licensee and PapayaMobile, Licensee owns all right, title, and interest in and to the Game and the Intellectual Property Rights therein, and nothing in this Agreement will confer on PapayaMobile any right of ownership or interest in the same.
7.4. During the term of this Agreement, PapayaMobile shall solely manage the End User Data and may allow Licensee to have access to the End User Data solely to the extent necessary to operate the Game. Licensee shall not retain or create any copies of the End User Data.
8. Representations and Warranties; Covenants
8.1. By PapayaMobile. PapayaMobile hereby represents, warrants and covenants that:
8.1.1. PapayaMobile has the power and authority to grant the licenses contained herein.
8.1.2. PapayaMobile is a corporation duly organized and validly existing under the laws of the state set forth in the preamble above.
8.1.3. The execution, delivery, and performance by PapayaMobile of this Agreement are within the corporate powers of PapayaMobile and have been duly authorized by all necessary corporate action on the part of PapayaMobile.
8.2. By Licensee. Licensee hereby represents, warrants and covenants that:
8.2.1. (a) Licensee has the power and authority to grant the licenses contained herein (b) the Game and any Licensee marks provided to PapayaMobile hereunder are not and shall not be the subject of any lien, encumbrance, claim, litigation or arbitration, whether pending, suspected or threatened; (c) the Game, the Application (if applicable), and any Licensee marks or materials provided to PapayaMobile hereunder do not and will not violate any law or infringe any Intellectual Property Right or other right of any third party, including without limitation any rights of publicity or privacy or other rights, or give rise to any legal claim by any third party.
8.2.2. Licensee is an individual or entity duly organized and validly existing under the laws of the state set forth in the preamble above.
8.2.3. The execution, delivery, and performance by Licensee of this Agreement are within the corporate powers of Licensee; have been duly authorized by all necessary corporate action on the part of Licensee; and will not violate any law, statute, or other governmental regulation, or any other agreement or instrument to which Licensee is a party.
8.2.4. Licensee will treat End User Data in accordance with all applicable laws, regulations, and the privacy policy of any applicable third party, including without limitation the Authorized Platforms. The Game (and/or Application if applicable) does not and will not: (a) contain any material that is defamatory, obscene, indecent or pornographic, (b) contain any computer "virus," spyware, or other contaminating or destructive feature, (c) violate any applicable laws or regulations relating to distribution of downloadable computer software, (d) violate applicable privacy laws or regulations, (e) write any software or code not related to the Game installed by an End User; or (f) collect any personal End User Data other than as fully disclosed to PapayaMobile and the End User
8.3. DISCLAIMER OF WARRANTIES. PAPAYAMOBILE'S CONTENT, SOFTWARE, APPLICATIONS, NETWORK, SERVICES, PRODUCTS, THE GAMES ACADEMY AND MARKS ARE PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, AND PAPAYAMOBILE HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ERROR-FREE OR UNINTERRUPTED SERVICE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. Liability
9.1. Limitation on Damages. LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT PAPAYAMOBILE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS AND INSTRUCTORS SHALL NOT BE LIABLE TO LICENSEE UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY LICENSEE, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT PAPAYAMOBILE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
10. Indemnification
10.1. Licensee shall indemnify, defend and hold harmless PapayaMobile and its subsidiaries and affiliates as well as each of their owners, shareholders, directors, officers, employees, instructors, attorneys, accountants and agents, from and against any against any of the aforesaid indemnified parties, including costs, damages, losses, liabilities, and expenses (including without limitation reasonable attorneys' fees) relating thereto, arising out of or related in any way to (i) the Game, (ii) its use of the Licensed Technology, Integration Source Code, PapayaMobile Service, or (iii) Licensee's noncompliance with this Agreement, including without limitation any breach of the representations or warranties hereof or any breach of Section 13 (related to Open Source Software).
11. Compliance with Laws; Public Morals, Statutory Duties of Information
11.1. Licensee shall comply with all laws and regulations applicable in any country where the Game using Licensed Technology is used, promoted, distributed and/or marketed, including but not limited to provisions for the protection of minors. Licensee shall apply for and obtain all necessary approvals at its sole cost and expense.
11.2. Notwithstanding anything contained to the contrary herein, PapayaMobile may, upon written notice, at its sole discretion temporarily or permanently deactivate certain functionalities of the Licensed Technology within certain territories if such deactivation intends or is required to avoid probable violation of law, public morals or fundamental principles applicable in the respective territory.
12. Confidentiality
12.1. Nondisclosure. Licensee agrees that it shall use and reproduce the Confidential Information of PapayaMobile only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Licensee's employees, consultants, or advisors who have a need to know and shall not disclose such Confidential Information to any third party without the prior written approval of PapayaMobile. The foregoing obligations shall be satisfied by Licensee through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom Licensee discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for Licensee to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, Licensee has given PapayaMobile prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
12.2. Remedies. Licensee agrees that a breach of this Section 12 may result in immediate and irreparable harm to PapayaMobile that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, PapayaMobile will be entitled to equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
13. Open Source Policy
13.1 Licensee agrees to abide by the following guidelines for the use of Open Source Non-Viral Software and Open Source Viral Software:
13.1.1 “Open Source Non-Viral Software” means any software (in source or object code form) licensed from a third party (a) under a license or other agreement commonly referred to as open source, free software or community source code license, and (b) not constituting Free or Open Source Viral Software.
13.1.2 “Open Source Viral Software” means any software (in source or object code form) licensed under a license or other agreement that requires, as a condition of the use, modification or distribution of software subject to such license or agreement, that the licensees’ software combined or distributed with the software subject to such license or agreement be (1) disclosed, distributed, made available, offered, licensed or delivered in source code form, (2) licensed for the purpose of making derivative works, (3) licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or (4) redistributable at no charge.
13.1.3 Licensee agrees not to use any Open Source Viral Software in connection with, combined with or linking to any PM Software, including but not limited to the Papaya Mobile Splash.
13.1.4. Licensee may use Open Source Non-Viral Software provided that Licensee (i) complies with the terms of any license or other Agreement governing such software; and (ii) informs PapayaMobile in writing of such intended use prior to combining or linking such Open Source Non-Viral Software to the PM Software.
13.1.5 Licensee agrees not to remove headers from open source code and to always properly follow any attribution requirements of the Open Source Non-Viral Software.
14. Miscellaneous
14.1. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over PapayaMobile, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of a state court located in Santa Clara County, California or the United States District Court for the Northern District of California, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
14.2. Arbitration. In the unlikely event that PapayaMobile has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any PapayaMobile claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) in the Santa Clara County, California under the commercial rules then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing PapayaMobile from seeking injunctive or other equitable relief from the courts as necessary to protect any of PapayaMobile’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PAPAYAMOBILE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14.3. Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Papaya Mobile may, without the consent of the Licensee, assign this Agreement in whole or in part without limitation. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties' successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
14.4. Entire Agreement. This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended by Licensee without the prior written consent of Papaya Mobile.
14.5. Force Majeure. If either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a "Force Majeure Event"), such Party's performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
14.6. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Routine communications may be made by e-mail, which shall be deemed given when the receiving Party confirms receipt. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section.
14.7. Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
14.8. Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
14.9. Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
14.10. Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
14.11. Construction; Advice of Counsel. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.