Please direct your attention to the appropriate “Master Software Licensing Agreement” you are subscribing to below – “Enterprise Innovation Partnership”, “30 day trial (Audition)”, OR “Debut/Startup Developer/Enterprise”.

OnTheGo Platforms Subscription License Agreement – Enterprise Innovation Partnership

Software Development Kit (“SDK”)

This OnTheGo Platforms Subscription License Agreement (SDK), dated as of (this “Agreement”) is made by and between OnTheGo Platforms, Inc., a Washington corporation (“OnTheGo”), with its principal place of business located in Portland, Oregon and the purchaser of the SDK under this Agreement (“You,” and this agreement being the “Agreement”). Capitalized terms shall take their respective meanings as set forth in this Agreement, or if such definition is not contained herein, then in the Tier Subscription Licensing Framework and/or Enterprise Innovation Partnership Agreement (as defined in Section 1, below). In consideration of the mutual covenants hereinafter set forth, the parties hereby agree as follows: By installing, accessing or otherwise using the SDK, You accept the terms of this Agreement. If You do not agree to the terms of this Agreement, do not install, access or use the SDK or the application programming interfaces (the “APIs”). If You are using this for the benefit of Your employer or other entity or You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept the Agreement or use the SDK on behalf of Your employer or other entity. You may not use the SDK and may not accept this Agreement if You, or the entity you represent, is a person or entity barred from receiving the SDK under the laws of the United States or other countries including the country in which You are resident or from which You use the SDK.

  1. Scope. The SDK is made available by OnTheGo to assist developers of software applications in integrating gesture recognition functionality into their applications for use with SmartPhones, Tablets, SmartGlasses, Wearables, or other technology which contains a camera. OnTheGo provides different licensing options for the SDK and depending on which licensing option is selected by You and/or the Enterprise Innovation Partnership Agreement, the provision of support services, downloads, and other features may vary accordingly, all as set forth in the OnTheGo Platforms SDK Tier Subscription Licensing Framework and/or the “Enterprise Innovation Partnership” agreement. The Enterprise Innovation Partnership Licensing Framework, may be updated every six (6) months subject to its terms, is incorporated herein by reference, and you are subject to the terms and restrictions based on the Subscription licensing you have purchased. This Agreement applies to any updates, supplements or support services for the SDK, unless other terms accompany those items; provided that any new version of the SDK released by OnTheGo must be licensed pursuant to a separate written agreement.

2. SDK Subscription License. Subject to the terms of this Agreement, OnTheGo grants You a limited, revocable, royalty-free, non-assignable, non-sublicensable, non-transferable and non-exclusive Subscription license to use the SDK solely as provided by the Subscription licensing option You purchase and/or the Enterprise Innovation Partnership Agreement. You may redistribute portions of the SDK solely as are necessary for your licensed application to operate, and in object code/executable form only. You agree that OnTheGo or third parties own all legal right, title and interest in and to the SDK, including any Intellectual Property Rights that exist in the SDK. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. OnTheGo reserves all rights not expressly granted to You. Except as expressly permitted herein, You may not modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK or copies thereof. You may copy the SDK, provided that You reproduce only complete copies, including without limitation all “read me” files, copyright notices, and other legal notices and terms that are included in the SDK for Your internal use only and for the sole purpose of developing and testing Your Applications. Use, reproduction and distribution of components of the SDK licensed under an open source software license, if any, are governed solely by the terms of that open source software license and not this Agreement. You agree that the form and nature of the SDK that OnTheGo provides may change without prior notice to You and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK, including without limitation any Applications You develop in connection with this Agreement. You agree that OnTheGo may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to You or to users generally at OnTheGo’s sole discretion, without prior notice to You. Nothing in this Agreement gives You a right to use any of OnTheGo’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. You agree that You will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.

3. Use of the SDK. OnTheGo agrees that it obtains no right, title or interest from You (or Your licensors) under this Agreement in or to any Applications or systems or products that You develop or integrate with using the SDK, including any intellectual property rights which exist in those Applications. You agree to use the SDK and write Applications only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.

4. Fees. Fees for the license and rights granted herein will vary depending on which licensing option you purchase, and shall be as set forth in the Tier Subscription Licensing Framework and/or the Enterprise Innovation Partnership Agreement (the “Fees”). Each party shall be responsible for any applicable taxes, fees, or expenses incurred by such party pursuant to this Agreement. Each party will retain any other revenue generated in connection with this Agreement or any software or Application developed therefrom.

5. Audit Rights. OnTheGo’s collection of Fees is calculated in accordance with Your self-reporting of the volume of the Distribution of the Developed Applications during each Reporting Period. Accordingly, we shall be entitled to audit You during the term of this Agreement (and for three (3) years thereafter, each three year period commencing from the last day of the Reporting Period). You agree to keep (in accordance with generally accepted auditing standards), and OnTheGo (or OnTheGo’s authorized representative) may (upon five (5) business days’ notice and during normal business hours) examine, undertake an audit and make copies of, all books and records relating to this Agreement. If any audit reveals that You have not accurately reported the volume of Distribution of the Developed Applications, or any other breach of this Agreement, you shall cure the noncompliance within thirty (30) days of the audit.

6. Support.   OnTheGo will provide technical or other support (“Support Services”) for the SDK to You as outlined in the Subscription licensing option You purchase, such Subscription licensing options with corresponding Support Services being set forth in the Tier Subscription Licensing Framework and/or the Enterprise Innovation Partnership Agreement. Your use of such Support Services will be governed by then-current OnTheGo policies. With respect to any technical or other information, including product suggestions or comments that You provide to OnTheGo in connection with the Support Services, You agree that OnTheGo has an unrestricted right to use such information for its business purposes, including for product support, improvement, and development. OnTheGo will not use such information in a form that personally identifies You.

7. Privacy and Information. OnTheGo may collect certain information from You in connection with this Agreement, including without limitation your name, telephone number, mailing address, email address, and company affiliation. Further, in order to continually innovate and improve the SDK, OnTheGo may collect certain information from you to facilitate bug tracking, as well as usage statistics from the SDK or software developed using the SDK and information on which tools and/or services in the SDK are being used and how they are being used. The data collected may be maintained in accordance with any applicable privacy policy.

8. Terminating this Agreement. This Agreement will be in effect for six (6) months from the date you Subscribe / purchase the SDK. If You want to earlier terminate this Agreement, You may do so by notifying OnTheGo. OnTheGo may, at any time, terminate this Agreement with You if: (A) You have breached any provision of this Agreement; or (B) OnTheGo is required to do so by law. The following terms will survive termination of this Agreement: Sections 5, 6, 7, 8, 9, 10 and 11.

9. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SDK IS AT YOUR SOLE RISK AND THAT THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM ONTHEGO. YOUR USE OF THE SDK AND ANY MATERIAL DISTRIBUTED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. ONTHEGO FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

10. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT ONTHEGO, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT ONTHEGO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

11. Indemnification. To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless OnTheGo, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) Your use of the SDK, (b) any Application, function, or system You develop using or based on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) Your non-compliance with this Agreement.

12. General. This Agreement constitutes the whole legal agreement between You and OnTheGo with respect to the SDK and governs Your use of the SDK, and completely replaces and supersedes any prior agreements between You and OnTheGo in relation to the SDK. You agree that if OnTheGo does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which OnTheGo has the benefit of under any applicable law), this will not be taken to be a formal waiver of OnTheGo’s rights and that those rights or remedies will still be available to OnTheGo. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable. No other person or company shall be third party beneficiaries to this Agreement. THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. The rights granted in this Agreement may not be assigned or transferred by either You or OnTheGo without the prior written approval of the other party. OnTheGo may assign or transfer this Agreement to any entity controlling, controlled by, or under common control with OnTheGo or any entity that acquires or succeeds to all or substantially all of OnTheGo’s assets or stock. This Agreement, and Your relationship with OnTheGo under this Agreement, shall be governed by the laws of the State of Oregon without regard to its conflict of laws provisions. You and OnTheGo agree to submit to the exclusive jurisdiction of the courts located within Multnomah County, Oregon to resolve any legal matter arising from this Agreement. Notwithstanding this section, You agree that OnTheGo may still apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

 

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OnTheGo Platforms 30-Day Trial (Audition) Software Development Kit License Agreement

This OnTheGo Platforms Trial Software Development Kit License Agreement (this “Agreement”) is made by and between OnTheGo Platforms, Inc., a Washington corporation (“OnTheGo”), with its principal place of business located in Portland, Oregon and the recipient of the SDK under this Agreement (“You”). Capitalized terms shall take their respective meanings as set forth in this Agreement. In consideration of the mutual covenants hereinafter set forth, the parties hereby agree as follows:  By installing, accessing or otherwise using the SDK, You accept the terms of this Agreement. If You do not agree to the terms of this Agreement, do not install, access or use the SDK or the APIs.  If You are using this for the benefit of Your employer or other entity or You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept the Agreement or use the SDK on behalf of Your employer or other entity.  You may not use the SDK and may not accept this Agreement if You, or the entity You represent, is a person or entity barred from receiving the SDK under the laws of the United States or other countries including the country in which You are resident or from which You use the SDK.

  1. Scope.  The SDK is made available by OnTheGo to assist developers of software applications in integrating gesture recognition functionality into their applications for use with SmartGlass technology.  The SDK is provided SOLELY for internal development and testing purposes and may not be USED FOR COMMERCIAL PRODUCT DEVELOPMENT, REDISTRIBUTION and/or included in any application released to end users.  OnTheGo is willing to supply the ARI Software Development Kit and any associated documentation, software code or other materials made available by OnTheGo, including without limitation documentation for certain application programming interfaces (“APIs”) (collectively “SDK”) to You to be used internally by You solely for the purpose of developing and testing Your software applications (“Application(s)”). This Agreement applies to any updates, supplements or support services for the SDK, unless other terms accompany those items; provided that any new version of the SDK released by OnTheGo must be licensed pursuant to a separate written agreement.

  2. SDK License.  Subject to the terms of this Agreement, OnTheGo grants You a limited, revocable, royalty-free, non-assignable, non-sublicensable, non-transferable and non-exclusive license to use the SDK internally for the sole purpose of developing and testing Your Applications for use with SmartGlass technology.  You agree that OnTheGo or third parties own all legal right, title and interest in and to the SDK, including any Intellectual Property Rights that exist in the SDK. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights.  OnTheGo reserves all rights not expressly granted to You.  Except as expressly permitted herein, You may not modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK or copies thereof.  You may copy the SDK, provided that You reproduce only complete copies, including without limitation all “read me” files, copyright notices, and other legal notices and terms that are included in the SDK for Your internal use only and for the sole purpose of developing and testing Your Applications.  Use, reproduction and distribution of components of the SDK licensed under an open source software license, if any, are governed solely by the terms of that open source software license and not this Agreement.  You agree that the form and nature of the SDK that OnTheGo provides may change without prior notice to You and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK, including without limitation any Applications You develop in connection with this Agreement. You agree that OnTheGo may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to You or to users generally at OnTheGo’s sole discretion, without prior notice to You.  Nothing in this Agreement gives You a right to use any of OnTheGo’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.  You agree that You will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.

  3. Use of the SDK.  OnTheGo agrees that it obtains no right, title or interest from You (or Your licensors) under this Agreement in or to any Applications or systems or products that You develop or integrate with using the SDK, including any intellectual property rights which exist in those Applications.  You agree to use the SDK and write Applications only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.

  4. Fees.  No payments shall be owed by either party to the other for the license and rights granted herein.  Each party shall be responsible for any applicable taxes, fees, or expenses incurred by such party pursuant to this Agreement.  Each party will retain any other revenue generated in connection with this Agreement or any software or Application developed therefrom.  OnTheGo reserves the right in the future to charge for use of the SDK or the APIs. If OnTheGo chooses to establish fees and payment terms for such use, OnTheGo will notify You of such terms and You may elect to stop using the SDK and/or APIs rather than incurring fees.

  5. Support.   OnTheGo is not obligated to provide any technical or other support (“Support Services”) for the SDK to You.  If OnTheGo chooses to offer any Support Services to You, Your use of such Support Services will be governed by then-current OnTheGo policies. With respect to any technical or other information, including product suggestions or comments that You provide to OnTheGo in connection with the Support Services, You agree that OnTheGo has an unrestricted right to use such information for its business purposes, including for product support, improvement, and development.  OnTheGo will not use such information in a form that personally identifies You.

  6.  Privacy and Information.  OnTheGo may collect certain information from You in connection with this Agreement, including without limitation Your name, telephone number, mailing address, email address, and company affiliation.  Further, in order to continually innovate and improve the SDK, OnTheGo may collect certain information from You to facilitate bug tracking, as well as usage statistics from the SDK or software developed using the SDK and information on which tools and/or services in the SDK are being used and how they are being used.  The data collected may be maintained in accordance with any applicable privacy policy.

  7. Terminating this Agreement.  This Agreement will be in effect for one (1) year from the date you enter into it. If You want to terminate this Agreement, You may do so by ceasing Your use of the SDK.  OnTheGo may, at any time, terminate this Agreement with You if: (A) You have breached any provision of this Agreement; or (B) OnTheGo is required to do so by law; or (C) any partner or licensor with whom OnTheGo offered certain parts of SDK (such as APIs) to You has terminated its relationship with OnTheGo or ceased to offer certain parts of the SDK to You; or (D) OnTheGo decides to no longer provide the SDK or certain parts of the SDK to users in the country in which You are resident; or (E) the provision of the SDK or certain SDK services to You by OnTheGo is, in OnTheGo’s sole discretion, no longer commercially viable.  The following terms will survive termination of this Agreement: Sections 5, 6, 7, 8, 9, 10 and 11.

  8. DISCLAIMER OF WARRANTIES.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SDK IS AT YOUR SOLE RISK AND THAT THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM ONTHEGO.  YOUR USE OF THE SDK AND ANY MATERIAL DISTRIBUTED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.  ONTHEGO FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  9. LIMITATION OF LIABILITY.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT ONTHEGO, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT ONTHEGO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

  10. Indemnification.  To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless OnTheGo, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Your use of the SDK, (b) any Application, function, or system You develop using or based on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) Your non-compliance with this Agreement.

  11.             General.  This Agreement constitutes the whole legal agreement between You and OnTheGo with respect to the SDK and governs Your use of the SDK, and completely replaces and supersedes any prior agreements between You and OnTheGo in relation to the SDK.  You agree that if OnTheGo does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which OnTheGo has the benefit of under any applicable law), this will not be taken to be a formal waiver of OnTheGo’s rights and that those rights or remedies will still be available to OnTheGo. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.  No other person or company shall be third party beneficiaries to this Agreement. THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS.  YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK.  The rights granted in this Agreement may not be assigned or transferred by either You or OnTheGo without the prior written approval of the other party.  OnTheGo may assign or transfer this Agreement to any entity controlling, controlled by, or under common control with OnTheGo or any entity that acquires or succeeds to all or substantially all of OnTheGo’s assets or stock. This Agreement, and Your relationship with OnTheGo under this Agreement, shall be governed by the laws of the State of Oregon without regard to its conflict of laws provisions. You and OnTheGo agree to submit to the exclusive jurisdiction of the courts located within Multnomah County, Oregon to resolve any legal matter arising from this Agreement.  Notwithstanding this section, You agree that OnTheGo may still apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

 

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OnTheGo Platforms Subscription License Agreement – (Debut, Startup Developer, Enterprise)

Software Development Kit (“SDK”)

This OnTheGo Platforms Subscription License Agreement (SDK), dated as of (this “Agreement”) is made by and between OnTheGo Platforms, Inc., a Washington corporation (“OnTheGo”), with its principal place of business located in Portland, Oregon and the purchaser of the SDK under this Agreement (“You,” and this agreement being the “Agreement”). Capitalized terms shall take their respective meanings as set forth in this Agreement, or if such definition is not contained herein, then in the Tier Subscription Licensing Framework (as defined in Section 1, below). In consideration of the mutual covenants hereinafter set forth, the parties hereby agree as follows: By installing, accessing or otherwise using the SDK, You accept the terms of this Agreement. If You do not agree to the terms of this Agreement, do not install, access or use the SDK or the application programming interfaces (the “APIs”). If You are using this for the benefit of Your employer or other entity or You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept the Agreement or use the SDK on behalf of Your employer or other entity. You may not use the SDK and may not accept this Agreement if You, or the entity you represent, is a person or entity barred from receiving the SDK under the laws of the United States or other countries including the country in which You are resident or from which You use the SDK.

  1. Scope. The SDK is made available by OnTheGo to assist developers of software applications in integrating gesture recognition functionality into their applications for use with SmartPhones, Tablets, SmartGlasses, Wearables, or other technology which contains a camera. OnTheGo provides different licensing options for the SDK and depending on which licensing option is selected by You, the provision of support services, downloads, and other features may vary accordingly, all as set forth in the OnTheGo Platforms SDK Tier Subscription Licensing Framework, located at https://www.otgplatforms.com/pricing/ or such other location as OnTheGo may designate from time to time (such framework being the “Tier Subscription Licensing Framework”). The Tier Subscription Licensing Framework, as the same may be updated from time to time subject to its terms, is incorporated herein by reference, and you are subject to the terms and restrictions based on the Subscription licensing you have purchased. This Agreement applies to any updates, supplements or support services for the SDK, unless other terms accompany those items; provided that any new version of the SDK released by OnTheGo must be licensed pursuant to a separate written agreement.
  1. SDK Subscription License. Subject to the terms of this Agreement, OnTheGo grants You a limited, revocable, royalty-free, non-assignable, non-sublicensable, non-transferable and non-exclusive Subscription license to use the SDK solely as provided by the Subscription licensing option You purchase. You may redistribute portions of the SDK solely as are necessary for your licensed application to operate, and in object code/executable form only. You agree that OnTheGo or third parties own all legal right, title and interest in and to the SDK, including any Intellectual Property Rights that exist in the SDK. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. OnTheGo reserves all rights not expressly granted to You. Except as expressly permitted herein, You may not modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK or copies thereof. You may copy the SDK, provided that You reproduce only complete copies, including without limitation all “read me” files, copyright notices, and other legal notices and terms that are included in the SDK for Your internal use only and for the sole purpose of developing and testing Your Applications. Use, reproduction and distribution of components of the SDK licensed under an open source software license, if any, are governed solely by the terms of that open source software license and not this Agreement. You agree that the form and nature of the SDK that OnTheGo provides may change without prior notice to You and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK, including without limitation any Applications You develop in connection with this Agreement. You agree that OnTheGo may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to You or to users generally at OnTheGo’s sole discretion, without prior notice to You. Nothing in this Agreement gives You a right to use any of OnTheGo’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. You agree that You will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.

  2. Use of the SDK. OnTheGo agrees that it obtains no right, title or interest from You (or Your licensors) under this Agreement in or to any Applications or systems or products that You develop or integrate with using the SDK, including any intellectual property rights which exist in those Applications. You agree to use the SDK and write Applications only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.

  3. Fees. Fees for the license and rights granted herein will vary depending on which licensing option you purchase, and shall be as set forth in the Tier Subscription Licensing Framework (the “Fees”). Each party shall be responsible for any applicable taxes, fees, or expenses incurred by such party pursuant to this Agreement. Each party will retain any other revenue generated in connection with this Agreement or any software or Application developed therefrom.

  4. Audit Rights. OnTheGo’s collection of Fees is calculated in accordance with Your self-reporting of the volume of the Distribution of the Developed Applications during each Reporting Period. Accordingly, we shall be entitled to audit You during the term of this Agreement (and for three (3) years thereafter, each three year period commencing from the last day of the Reporting Period). You agree to keep (in accordance with generally accepted auditing standards), and OnTheGo (or OnTheGo’s authorized representative) may (upon five (5) business days’ notice and during normal business hours) examine, undertake an audit and make copies of, all books and records relating to this Agreement. If any audit reveals that You have not accurately reported the volume of Distribution of the Developed Applications, or any other breach of this Agreement, you shall cure the noncompliance within thirty (30) days of the audit.

  5. Support.   OnTheGo will provide technical or other support (“Support Services”) for the SDK to You as outlined in the Subscription licensing option You purchase, such Subscription licensing options with corresponding Support Services being set forth in the Tier Subscription Licensing Framework. Your use of such Support Services will be governed by then-current OnTheGo policies. With respect to any technical or other information, including product suggestions or comments that You provide to OnTheGo in connection with the Support Services, You agree that OnTheGo has an unrestricted right to use such information for its business purposes, including for product support, improvement, and development. OnTheGo will not use such information in a form that personally identifies You.

  6. Privacy and Information. OnTheGo may collect certain information from You in connection with this Agreement, including without limitation your name, telephone number, mailing address, email address, and company affiliation. Further, in order to continually innovate and improve the SDK, OnTheGo may collect certain information from you to facilitate bug tracking, as well as usage statistics from the SDK or software developed using the SDK and information on which tools and/or services in the SDK are being used and how they are being used. The data collected may be maintained in accordance with any applicable privacy policy.

  7. Terminating this Agreement. This Agreement will be in effect for one (1) year from the date you Subscribe / purchase the SDK. If You want to earlier terminate this Agreement, You may do so by notifying OnTheGo. OnTheGo may, at any time, terminate this Agreement with You if: (A) You have breached any provision of this Agreement; or (B) OnTheGo is required to do so by law. The following terms will survive termination of this Agreement: Sections 5, 6, 7, 8, 9, 10 and 11.

  8. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SDK IS AT YOUR SOLE RISK AND THAT THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM ONTHEGO. YOUR USE OF THE SDK AND ANY MATERIAL DISTRIBUTED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. ONTHEGO FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  9. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT ONTHEGO, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT ONTHEGO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

  10. Indemnification. To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless OnTheGo, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) Your use of the SDK, (b) any Application, function, or system You develop using or based on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) Your non-compliance with this Agreement.

  11. General. This Agreement constitutes the whole legal agreement between You and OnTheGo with respect to the SDK and governs Your use of the SDK, and completely replaces and supersedes any prior agreements between You and OnTheGo in relation to the SDK. You agree that if OnTheGo does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which OnTheGo has the benefit of under any applicable law), this will not be taken to be a formal waiver of OnTheGo’s rights and that those rights or remedies will still be available to OnTheGo. If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable. No other person or company shall be third party beneficiaries to this Agreement. THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. The rights granted in this Agreement may not be assigned or transferred by either You or OnTheGo without the prior written approval of the other party. OnTheGo may assign or transfer this Agreement to any entity controlling, controlled by, or under common control with OnTheGo or any entity that acquires or succeeds to all or substantially all of OnTheGo’s assets or stock. This Agreement, and Your relationship with OnTheGo under this Agreement, shall be governed by the laws of the State of Oregon without regard to its conflict of laws provisions. You and OnTheGo agree to submit to the exclusive jurisdiction of the courts located within Multnomah County, Oregon to resolve any legal matter arising from this Agreement. Notwithstanding this section, You agree that OnTheGo may still apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.