DEVELOPER TERMS OF SERVICE
Last Updated: 12/16/2016
BY CLICKING THE CHECKBOX TO ASSENT TO THIS AGREEMENT OR BY OTHERWISE ACCESSING OR USING THE AFERO DEVELOPER TECHNOLOGY, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE AFERO DEVELOPER TECHNOLOGY.
This Afero Developer License Agreement For Platform Evaluation ("Agreement") is entered into by Afero, Inc. ("Afero") and you ("Developer" or "you") and governs your access and use of the Afero Developer Technology (defined below). Afero and Developer are sometimes referred to individually as a "Party" and collectively as the "Parties." For good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1. Definitions. In addition to terms defined elsewhere in this Agreement, the terms below will have the following meanings:
a. "Afero Developer Technology" means the Software, Afero APIs, ASR-1, and Modulo.
b. "Afero APIs" has the meaning specified in the Afero API License Addendum, attached as Addendum A to this Agreement.
c. "Afero Platform" means Afero's proprietary end-to-end Internet of things platform for enabling the connected management of objects, which includes the Services, the Afero wireless communications hub that interacts with the Services, the App and the Afero Developer Technology.
d. "App" means the Afero mobile application, including software and materials included therein, that can be used to interact with the Services.
e. "ASR-1" means the Afero security and Bluetooth chipset that requires activation by Afero before it will function and can be used in connection with the Afero Platform.
f. "Device" means any device owned or controlled by Developer that is capable of integration with the ASR-1 or Modulo.
g. "Integrated Device" means any Device that (i) is connected to or contains the ASR-1 or Modulo, or (ii) is otherwise designed to communicate with the Afero Platform.
h. "Intellectual Property Rights" means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
i. "Modulo" means a printed circuit board made available by Afero with an embedded ASR-1 that has been pre-activated by Afero.
j. "Platform Data" means any data collected, accessed or otherwise processed by Afero in connection with Developer's and its employees' testing and evaluation of the Afero Platform, including data collected in connection with the use of the App by any employee of Developer.
k. "Purpose" means Developer's internal (i) development, testing and evaluation of any Integrated Device, and (ii) limited testing and evaluation of the Afero Platform.
l. "Services" means Afero's hosted software services that enable end users of an App to send and receive instructions and messages to and from and otherwise remotely interact with an Integrated Device.
m. "Site" means the websites and webpages hosted at the afero.io domain, including the hosted software services made available via the Site.
n. "Software" means any software and software development tools made available by Afero via the Chrome Web Store [https://chrome.google.com/webstore/category/apps] or in any other manner determined by Afero in its sole discretion.
o. When used in this Agreement, "include" or "including" means "including but not limited to."
a. Pursuant to Section 3(a) below, Developer and its authorized employees shall only use the Afero Platform for the Purpose. If Developer desires to use the Afero Platform for any other purpose, including selling or otherwise distributing any Integrated Device, the Parties may negotiate a separate commercial service agreement signed by both parties ("Service Agreement").
b. If you are accessing or using the Afero Platform on behalf of a legal entity, you represent and warrant that: (i) you are an authorized representative of that entity; (ii) you have the authority to bind such entity to this Agreement, in which case the terms "Developer" and "you" will refer to you and such entity, collectively; and (iii) such entity will be responsible for breach of these Terms by you or any other employee of such entity.
c. Developer's access and use of the Site will be governed by the Site terms and conditions [https://www.afero.io/site-terms] ("Site Terms "). Developer agrees to be bound by the Site Terms in connection with its access and use of the Site.
d. Developer's access and use of the App and the Services will be governed by the App terms and conditions [https://www.afero.io/app-terms] ("App Terms"). Developer agrees to be bound by the App Terms in connection with its access and use of the App and the Services.
e. Developer's access and use of the Afero APIs will be governed by the terms of this Agreement and the Afero API License Addendum, which is attached as Addendum A to this Agreement and incorporated by reference herein.
3. Afero Platform.
a. License. Subject to the terms of this Agreement, Afero grants Developer, during the term of this Agreement, a limited, personal, revocable, non-exclusive, non-transferable license, under any rights Afero may have, to: (i) install a single copy of the Software on up to three (3) computers owned or controlled by Developer; (ii) use the Software solely in connection with the Purpose; (iii) integrate ASR-1 or Modulo with a Device solely in connection with the Purpose; and (iv) make a reasonable number of copies of any documentation made available by Afero solely to facilitate the exercise of any of the licenses or rights granted to Developer under this Agreement.
b. Restrictions. Developer will maintain reasonable limitations on its access and use of the Afero Platform and only access and use the Afero Platform as necessary to exercise rights granted in Section 3(a). Unless Developer receives Afero's prior written approval, Developer will not (directly or indirectly): (i) modify or create any derivative works of the Afero Platform; (ii) work around, interfere with, exceed or circumvent any technical limitations in the Afero Platform; (iii) reverse engineer, decompile, translate, disassemble, or otherwise attempt to derive the source code of the Afero Platform; (iv) publish, rent, lease, distribute, lend, sell, sublicense, or otherwise commercialize the Afero Platform or any Integrated Device; (v) release or disclose the results of Developer's use, development, or evaluation of the Afero Platform or any Integrated Device to any third party other than via the Site's developer forum; (vi), release or disclose the results of any benchmark testing of the Afero Platform or any Integrated Device; (vii) remove or alter any proprietary notices or labels on or in the Afero Platform; or (viii) use the Afero Platform in any way that interferes with, disrupts, damages, unreasonably burdens, or accesses in an unauthorized manner the servers, networks, or other properties or services of Afero or any third party.
c. ASR-1. Developer acknowledges that the ASR-1 is not functional and cannot be used in connection with any Integrated Device until such ASR-1 is first activated by Afero. Prior to using any ASR-1 obtained by Developer independent of Modulo, Developer must first request activation from, and provide any information requested by, Afero. Developer may request activation of ASR-1 at [https://www.afero.io/activate]. Following receipt of such request and information, Afero, in its sole discretion, may activate the ASR-1.
d. Services. Afero may provide Developer with reasonable access to and use of the Services without additional charges or fees solely for the Purpose. Without limiting any other rights of Afero under this Agreement: (i) Afero reserves the right to establish and enforce access and use limitations related to the Services at any time, including maximum use and traffic limitations; and (ii) Afero may limit, suspend or terminate Developers access to the Services in the event Afero determines or reasonably believes that Developer's use of the Developer Platform or Services exceeds reasonable or established use and traffic limitations or Developer's use exceeds the scope of the Purpose. If Developer desires to use the Afero Platform for any other purpose, including selling or otherwise distributing any Integrated Device, or desires to secure additional rights to use the Services for a fee, the Parties may negotiate a separate Service Agreement.
e. Authorized Users. Developer will ensure that only its authorized employees access and use the Afero Developer Technology and any Integrated Device, including the App in connection with any Integrated Device. Developer will ensure that its authorized employees access and use the Afero Developer Technology and Integrated Device solely on behalf of Developer.
f. Third-Party Software. Third-Party Software. Certain parts of the Software include or utilize third-party software, which may be subject to additional license terms and notices. Such third party additional license terms and notices can be found here [https://www.afero.io/legal#licenses]. Developer will comply with all applicable third-party terms and conditions in connection with its use of such third-party software. If Developer does not agree with the terms of all applicable third party terms and notices, Developer must not use the Software.
g. Platform Data. If you are accessing or using the Afero Developer Technology on behalf of a legal entity, then: (i) Afero will have the right to use and disclose Platform Data for any purpose, including to operate and improve the Afero Platform; and (ii) Developer will be solely responsible for providing any notices to, and obtaining any consents from, its employees as required under applicable law in connection with Afero's collection, use and sharing of Platform Data.
4. Updates; Support; Suspension and Discontinuance.
a. Updates. Afero may make updates to the Software available from time to time. If Software updates are made available by Afero, the terms of this Agreement will govern such updates, unless the update is accompanied by a separate license in which case the terms of that license will apply. If Afero provides any such updates, the license granted to Developer for prior versions of the Software will immediately terminate and Developer will immediately discontinue using such prior versions.
b. Support. Afero is not obligated to provide any maintenance or other support for the Afero Platform. Afero may, in its sole discretion, voluntarily provide support services to Developer and its designated personnel in order to help facilitate Developer's use of the Afero Platform. If Developer desires Afero to commit to performing certain support services, including any customization work, Developer and Afero may separately agree upon a written agreement signed by both parties for such support services.
c. Suspension; Discontinuance. Afero reserves the right to restrict, discontinue or suspend the Afero Platform or Developer's use thereof, including any features or portions, without prior notice. Afero will not be liable for any such restriction, suspension or discontinuance.
5. Integrated Devices. Developer will: (a) secure all rights necessary to integrate the ASR-1 or Modulo into any Device; (b) be solely responsible for (i) any integration of the ASR-1 or Modulo into any Integrated Device, and (ii) its use of the Afero Platform and any Integrated Device; (c) ensure that any Integrated Device, and Developer's integration of ASR-1 or Modulo into any Integrated Device, does not infringe or misappropriate any Intellectual Property Rights of any third party or violate any applicable laws, rules or regulations ("Applicable Law"); and (d) not integrate the ASR-1 or Modulo into any Device, the operation of which is reasonably likely or intended to cause personal injury, property damage or death. The Afero Platform and any wireless networks that it uses to operate are not fail-safe and are not intended, designed, or manufactured for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or air traffic control, communications systems, life support machines, or weapons systems, in which the failure of such products could lead directly to death, personal injury, or severe physical or environmental damage (collectively, "Excluded Uses"). Without limiting the foregoing, Developer will not use the Afero Platform for any Excluded Uses.
6. Developer Representations and Warranties. Developer represents and warrants that: (i) it has full power and authority to enter into, and fulfill its obligations and exercise its rights under, this Agreement; and (ii) it will comply with all Applicable Law and any applicable third-party agreements in connection with its performance under this Agreement.
7. Proprietary Rights. Except for the limited rights granted under Section 3(a) of this Agreement, Afero and its licensors retain all rights (including Intellectual Property Rights), title, and interest in and to the Afero Platform. Developer may provide Afero with feedback related to Afero or the Afero Platform (" Feedback"), including recommendations for improvements and commercialization. Developer hereby assigns all of its right, title, and interest to any Feedback, including all Intellectual Property Rights therein, to Afero.
8. Confidential Information.
a. "Confidential Information" means any information disclosed by Afero to Developer, including product plans, designs, prices, non-published financial information, business opportunities, research, development, and know-how, designated as confidential at the time of disclosure or that by its nature or the circumstances of disclosure should reasonably be understood to be confidential. The Afero Platform will be deemed the Confidential Information of Afero.
b. Developer will use Confidential Information only to exercise its rights and perform its obligations under this Agreement. Developer will not disclose Confidential Information to any third party, except: (i) to its employees who have a need to know it and who are bound in writing by confidentiality terms no less restrictive than those contained herein; and (ii) if required by Applicable Law, provided, however, that Developer will notify Afero (unless prohibited by Applicable Law) of such requirement immediately in writing and will reasonably cooperate with Afero in obtaining a protective or similar order.
c. The obligations under this Section 8 will not apply to information that (i) can be demonstrated by written records was in Developer's possession prior to disclosure by Afero; (ii) is or becomes publicly known or readily ascertainable without breach of this Agreement or any wrongful act; or (iii) is lawfully received by Developer from a third party without an obligation of confidentiality.
d. Upon termination of this Agreement, and at any time upon Afero's notice, Developer will promptly return or destroy all Confidential Information.
9. Disclaimers. THE AFERO PLATFORM IS PROVIDED "AS IS," WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. AFERO DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. DEVELOPER ASSUMES ALL RISK ASSOCIATED WITH ITS ACCESS AND USE OF THE AFERO PLATFORM. The Afero Platform and any wireless networks that it uses to operate are not fail-safe and are not intended, designed, or manufactured for use or resale as control equipment in any Excluded Use. This disclaimer of warranty constitutes an essential part of this Agreement.
10. Indemnification. Developer will defend, indemnify and hold harmless Afero and its directors, officers, employees and agents ("Afero Parties") from and against all claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to: (a) Developer's breach of any term of this Agreement; (b) any property damage, personal injury, or death related to the operation of any Device or Integrated Device; (c) any actual or alleged infringement or misappropriation of Intellectual Property Rights by any Device or Integrated Device; (d) Developer's use of the Afero Platform; or (e) any Feedback.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) AFERO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUES OR LOST PROFITS, UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (b) IN NO EVENT WILL AFERO'S AGGREGATE LIABILITY ARISING OUT OR RELATING TO THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS (USD $1,000.00).
12. Termination; Survival.
a. The term of this Agreement will commence upon Developer's agreement to this Agreement, as recorded by Afero, and continue until terminated in accordance with Section 12(b).
b. Either Party may terminate this Agreement with or without cause immediately upon notice to the other Party.
c. Upon any termination of this Agreement, (i) Developer must discontinue accessing and using the Afero Platform and delete all Software and documentation; (ii) all obligations or liabilities that accrued prior to the effective date of termination and all remedies for breach of this Agreement will survive; and (iii) except as specified in Section 12(d), all other rights, obligations, and licenses of the Parties under this Agreement will terminate.
d. The following terms will survive any termination or expiration of this Agreement: Sections 7, 8, 9, 10, 11, 12(d), and 13.
13. General Terms.
a. Export Control. Developer may not use or otherwise export the Afero Developer Technology or any content contained therein, except as authorized by United States law and any other Applicable Law. Without limiting the foregoing, Developer will not export the Afero Developer Technology to (a) any U.S. embargoed countries; or (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. Developer represents and warrants that (y) it is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (z) it is not listed on any U.S. Government list of prohibited or restricted parties.
b. Government Use. The Afero Developer Technology, including all related software, technical data and documentation, are "Commercial Items" as that term is defined in 48 C.F.R. Section 2.101. Afero provides the Afero Developer Technology for U.S. Government end use solely in accordance with the following: (i) the Afero Developer Technology is licensed only as Commercial Items; and (ii) the U.S. Government will have the same rights as all other developers pursuant to this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for U.S. Department of Defense transactions, DFARS 252.227-7015 (Technical Data - Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a U.S. Government agency has a need for any additional rights, it must negotiate directly with Afero to determine if the Parties can negotiate an acceptable license amendment that must be included in any applicable contract or agreement.
c. Notices. Any notices required under this Agreement must be in English, in writing (email suffices) and will be treated as provided on receipt, as verified by written or automated receipt or by electronic log (as applicable). Notice to Afero must be provided to: email@example.com. Notice to Developer will be provided to the email address Developer maintains in connection with the account it created and uses via the Software. The foregoing notice obligations will not apply to Section 13(j) (Amendments).
d. Assignment. Developer may not assign or otherwise transfer any rights or obligations under this Agreement without Afero's prior written consent.
e. Choice of Law; Venue. This Agreement will be construed in accordance with the laws of the State of California, USA, without regard to its conflict of laws principles, and the Parties hereby submit to the exclusive jurisdiction of the federal and state courts in Santa Clara County, California in connection with any dispute arising out of this Agreement.
f. Relationship of the Parties. This Agreement does not create any agency or partnership relationship between the Parties.
g. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, that provision will be reformed to be enforceable to the maximum extent permitted by Applicable Law or severed, and the remainder of this Agreement will continue in full force and effect.
h. Entire Agreement. This Agreement is the complete and final agreement and understanding, and supersedes all prior and contemporaneous representations, agreements, and understandings, whether oral or written, concerning the subject matter of this Agreement. This Agreement does not amend, affect or supersede any other agreement Developer may have with Afero, including the App Terms or the Site Terms.
i. No Publicity. Developer will not issue any press release or otherwise make any public announcement with respect to this Agreement, the Afero Platform, or Developer's relationship with Afero without Afero's prior written consent.
j. Amendments. Afero may amend this Agreement from time to time and such amended Agreement will apply prospectively to any use of the Afero Developer Technology following the effective date of such amendment. If Afero amends this Agreement, Afero will notify Developer by updating the "Last Updated" date at the top of this Agreement and post the revised agreement via the Software. Afero, in its sole discretion, may provide additional notice of any amendments, including by email to Developer. Unless Afero otherwise indicates in its notice of any amendment, the amended Agreement will be effective immediately upon our provision of notice of such amended Agreement. Developer's continued use of Afero Developer Technology following the effective date of any amendment will constitute Developer's agreement to such amendment. If Developer does not agree to any amendment, Developer must immediately discontinue using the Afero Developer Technology.
Afero API License Addendum
a. "Afero APIs" means Afero's application programming interfaces, specifications, instructions and other documentation and materials, and the related data interface services provided in connection therewith, made available by Afero to Developer from time to time.
b. "API Keys" means the keys, access tokens, account numbers, and other access credentials issued by Afero to Developer to access and use the Afero APIs.
c. "Developer Data" means the electronic data received or otherwise accessed by Developer via the Afero APIs.
d. "Developer Software" means the software used by Developer to access and use the Afero APIs.
2. CHANGES; API KEYS; MONITORING.
a. Changes to Afero APIs. The Afero APIs are provided solely at the discretion of Afero, and Afero may change, suspend or cancel any or all of the functionality of the Afero APIs or revise the Afero APIs at any time. Without limiting the foregoing, Afero may suspend or cancel any Afero APIs provided to Developer immediately, with or without notice to Developer, in the event of an actual or reasonably suspected security breach or threat. Afero may revise the Afero APIs by providing the revised Afero APIs to Developer by email to Developer's email address registered with Afero, posting the revised Afero APIs to the Site, or notifying Developer through such other method as Afero may specify to Developer from time to time. In the event Afero revises the Afero APIs, except as otherwise set forth in the revised Afero APIs, Developer will update the Developer Software and its use of the Afero APIs to comply with the revised Afero APIs within thirty (30) days of the effective date of any such revisions.
b. API Keys; Security Breaches. Developer will treat all API Keys as Confidential Information of Afero, and will be solely responsible for all authorized and unauthorized use of the Afero APIs using such API Keys. Developer will promptly notify Afero if it discovers or otherwise suspects any security breaches related to the Afero APIs, including any unauthorized use or disclosure of API Keys.
c. Monitoring. Developer authorizes Afero to monitor Developer's use of the Afero APIs, including by accessing Developer Software, in order to (i) verify Developer's compliance with the terms of this Agreement, and (ii) operate, improve and protect the Afero Platform.
3. GRANT OF RIGHTS; USE RESTRICTIONS.
Grant of Rights . Subject to the terms of the Agreement (including this Addendum A), Afero hereby grants to Developer a nonexclusive, nontransferable, non-sublicensable license during the term of the Agreement to do the following solely in connection with its use of the Afero Platform for the Purpose:
(i) use the Afero APIs in accordance with applicable documentation to develop the Developer Software and customize and configure Developer's systems and networks solely as necessary to interface with the Afero APIs; and
(ii) access the Afero APIs in accordance with applicable documentation and send and receive Developer Data to and from the Afero APIs.
Upon termination of the Agreement, the foregoing license will automatically terminate.
b. Restrictions. Developer shall not, directly or indirectly, do any of the following:
(i) access the Afero APIs using any version of the Afero APIs other than the most current version made available by Afero to Developer, unless the most current version of the Afero APIs expressly allows continued use of prior versions;
(ii) introduce any infringing, obscene, libelous, or otherwise unlawful data or material into the Afero APIs;
(iii) interfere with any features or functionality of the Afero APIs; or
(iv) introduce into the Afero APIs or include in or with any Developer Software any viruses, trojan horses, malware, spyware, adware or other disruptive software, or any software code, which is designed to disrupt, damage, or perform unauthorized actions on a computer system.
4. DEVELOPER DATA.
a. Developer will (i) protect any Developer Data against unauthorized access, use and disclosure; (ii) only use Developer Data for the Purpose; (iii) only retain Developer Data for as long as necessary to fulfill the Purpose, but in no event more than thirty (30) days following the date it receives any such data; and (iv) destroy all Developer Data upon the earlier of any request of Afero or termination of the Agreement.
b. Developer will not (i) copy, modify, create a derivative work of, sell, lease, distribute, publicly display or publicly perform any Developer Data; or (ii) access and use the Developer Data except as permitted via the Afero APIs and applicable documentation.