License Agreement and Terms of Use The following terms and conditions (these "Terms") govern your use of the GOOTEN SDK and any and all data, text, software, code libraries, software development kits, tools, documents, application programming interface (the “API”) any GOOTEN Content (as defined below) and other materials associated with the GOOTEN SDK (collectively, the “GOOTEN Products”) are licensed by Gooten, Inc. (“Gooten”) to you (“Partner”). The GOOTEN Products licensed by Gooten and certain features and parameters of this license are described in the online form you completed on the GOOTEN web site when you registered to access the GOOTEN Products, or in one or more completed order forms that may be agreed to from time to time by and between Gooten and Partner (in each case, referred to in these terms as a “Registration Form”). Collectively, these Terms and the terms and conditions set forth in a Registration Form, if any, will constitute a single agreement between Gooten and Partner (combined, this “Agreement”). Where the forms conflict, the official partner agreement you sign when creating an account with Gooten shall take precedence over these Terms. The following user-friendly explanation is intended to be a helpful guide to navigating the terms of service. It's not a replacement though - and not all aspects are covered. By agreeing to this agreement, you are agreeing to the legalese, not to this user-friendly guide! This agreement gives you a license to use Gooten's product. You don't need to sign a separate paper agreement with us - your license is collectively composed of this page, any order forms you agreed to, and the registration form you fill out. By agreeing to these Terms in the manner specified during the registration process, OR BY USING OR ACCESSING ANY PORTION OF THE PRODUCT, you unconditionally agree to be bound by these Terms, and are becoming a party to this Agreement. Your continued use of the GOOTEN Products shall also constitute assent to these Terms. If you do not unconditionally agree to all of these Terms, DO NOT USE OR ACCESS ANY PORTION OF THE GOOTEN PRODUCTS. If the Terms set out herein are considered an offer, acceptance is expressly limited to these Terms. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE ANY OF THE GOOTEN PRODUCTS, IN WHOLE OR IN PART. If you use any Gooten product (or associated part of our product), you are completely bound to these terms. Your use is just as binding as a signature. 1. Grant of License Gooten hereby grants Partner a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the GOOTEN Products solely to embed a launchable GOOTEN SDK application within Partner’s mobile or website application(s) specified in the Registration Form (the “Partner Applications”) and to access GOOTEN Content in connection with such Partner Application. Partner may not install or use the GOOTEN Products for any other purpose without Gooten's prior written consent. Partner is solely responsible for the operation of the Partner Applications and for any terms and conditions applicable to use of and access to Partner Applications by its users. Partner will not make any representation or warranty on behalf of Gooten concerning the use, availability or features of the GOOTEN SDK or the GOOTEN Content. This license is just for you (or the company you represent). Your license to use Gooten can't be transferred to another app, company, person, etc. You can only use this license to include GOOTEN in the application you specified in our web form. Got a better idea for how to use our SDK? We're excited to hear it! But you definitely need our permission before you actually do it. You (and you alone) are responsible for how your users use your own app. Don't make promises about Gooten's products or otherwise represent Gooten and or GOOTEN in discussions with your users.
Restrictions Partner shall not distribute (for free or at a cost) any custom content through its implementation of the GOOTEN SDK unless otherwise agreed to in writing (including on a Registration Form) by Gooten. Except as expressly and unambiguously authorized under these Terms or in a Registration Form, Partner may not: • copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Gooten Product or the GOOTEN SDK without the prior written consent of Gooten; • otherwise use the GOOTEN Products on behalf of any third party; • display or integrate any advertisements on the GOOTEN SDK or GOOTEN Content without the prior written consent of Gooten; • use in full or in part the GOOTEN Products or SDK to place orders outside of those fulfilled and supplied by GOOTEN. • use or integrate the GOOTEN Products with any application, web site or software other than the Partner Applications; • enable, require or cause any user to purchase an item or service as a condition to continue use of the GOOTEN Products; or • otherwise use the GOOTEN Products or the GOOTEN SDK in any manner that exceeds the scope of the licenses granted under this Agreement. Want to distribute custom content through our SDK? Just make sure you have our permission first. Please respect our intellectual property - we worked really hard to make GOOTEN great and are trusting you with our hard work. Don't do any of the things in this paragraph. Agencies, consultants, freelancers and anyone else building or hosting a product for someone else: your client must be the one who agrees to our terms. You can't do it on their behalf. Ads while our SDK is not running are fine. Ads while our SDK is running are not. Only use GOOTEN in the app you registered with us. Use your good judgment. If there's something not covered in this agreement it's not OK to assume we'd be OK with you doing it first. Just ask us first. Restrictions on Partner Applications Partner shall not use the GOOTEN Products in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories. Partner agrees that the Partner Applications will, at all times, conform to the requirements of this Section. We try not to be judgmental, but we can’t be associated with certain types of activities for legal, publicity or business reasons. If you're app is shady, illegal or controversial in any way, you should get our permission first before implementing Gooten. GOOTEN Content Unless otherwise set forth in a Registration Form, Gooten reserves the right to add, remove, modify or alter any and all content existing within or transmitted through the GOOTEN Products or the GOOTEN SDK (the “GOOTEN Content”), including but not limited to (a) free, sponsored or purchasable content, or (b) installable additional content such as filters/effects, fonts, stickers, overlays, shapes, editing tools, masks, frames and other enhancements. In accordance with the foregoing, Gooten grants Partner a nonexclusive, revocable, nonsublicensable (except to Partner’s users), nontransferable license to access and use and display the GOOTEN Content that is identified on a Registration Form, solely in conjunction with the use of the GOOTEN Products as integrated with the Partner Applications in accordance with these Terms. We actively work on improving Gooten's product, especially the content we offer. We will probably make frequent to changes to the content that is available. All of the content that we make available is licensed to you to use, but only as part of the GOOTEN SDK experience. Branding Partner has the right to control the branded to the extent the GOOTEN SDK enables them to do so. White Label partners have permission to remove our logos and control the UI look and feel of the SDK. Creative Control Partner shall have creative control over branding, featured content and creative materials, and overall look and feel of Partner Application, excluding any GOOTEN Content or Gooten branding elements (the “Partner Materials”). Furthermore, Partner shall ensure that Partner maintains a privacy policy that allows Gooten to collect and use the following non-personally identifiable information: (a) opening and closing of the GOOTEN SDK, (b) when creative materials are uploaded, and (c) what tools within the GOOTEN SDK the user uses. Partner’s privacy policy and all use of personally identifiable information will be consistent with Gooten’s Privacy Policy. Partner or Partner’s users shall provide and clear all required Partner Materials for use in connection with the GOOTEN SDK, and Partner hereby grants Gooten a non-exclusive license to use, display, perform, modify, create derivative works of and otherwise fully exploit the Partner Materials solely for the purpose of providing the GOOTEN Products and performing any services on behalf of Partner under these Terms or a Registration Form. It's your app - so you decide how it looks. We collect some completely anonymized data to make our app experience better. Please make sure your privacy policy reflects that so your users know! We might need to use screenshots or other examples of partner app's using Gooten in action as part of standard promotion we do to showcase how our SDK is used. You are granting us permission to use your app for this purpose. [NOTE: While we reserve this right, if this is a problem, please just let us know]. Proprietary Rights As between Gooten and Partner, the GOOTEN Products, the GOOTEN SDK and all intellectual property rights therein are and shall at all times remain the sole and exclusive property of Gooten and are protected by applicable intellectual property laws and treaties. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Gooten (and its licensors) shall retain all right, title and interest in and to the GOOTEN Products, the GOOTEN SDK and the Gooten logos. As between the parties, Partner owns and retains all rights to the Partner Applications and to the Partner Materials and all intellectual property rights therein. These Terms do not grant Gooten any ownership rights to Partner Applications or the Partner Materials. You own your app and all components you built. We own the GOOTEN SDK and all components that we built. Pretty simple. Confidentiality Each party shall keep confidential and not disclose to any third party, or use for a purpose not contemplated by this Agreement, any non-public information (including without limitation the terms of this Agreement) obtained from the other party (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that the receiving party can document: (a) has been made publicly available by the disclosing party, (b) is or has been disclosed to such party without restriction by a third party who is not under an obligation of confidentiality with respect thereto, (c) is or has been independently developed by such party, without use of or reference to the other party’s confidential information, by persons without access to the same, or (d) must be disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. Gooten may disclose the terms and conditions of this Agreement to its financial and legal advisors, or in connection with a financing, or merger or acquisition of other strategic transaction entered into by Gooten or any Gooten affiliate. We will keep your product plans and data completely confidential, and ask that you do the same with ours. The only exceptions are (a) if the data was already made public, (b) or was told to someone else without a requirement of confidentiality, (c) or it technically wasn't made by either of us (eg. details of a third party code library), (d) or we are required by law. Also, we do have professional staff and investors we work with that we need to share certain details of this agreement. Other Fees Partner shall pay Gooten any additional fees that are specified in each applicable Registration Form, for example content or license fees for Premium Add-On Features, such as custom integration services or private version products (collectively “Fees”). Where applicable, Gooten will invoice Partner separately for all Fees due hereunder. Partners who use special services will follow the payment guidelines associated with the statement invoice.
Late Payment Interest and Taxes All amounts due to Gooten hereunder that are unpaid on the due date (including Fees and Revenue Share payments) shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If Partner disputes any report or applicable Fees or Revenue Share amounts due, Partner must notify Gooten in writing within five (5) days of invoice; failure to do so shall constitute Partner’s waiver of any claim relating to such invoice. Partner is solely responsible for paying all applicable taxes or charges imposed by any government entity in connection with the amounts payable under these Terms. If you don't pay us in a timely manner, you will incur a 1.5% penalty. You have 5 days from invoice to let us know if you found an error, otherwise we agree that everything is correct. You have to pay your own taxes, if any are due.
Trial Review Period If a Registration Form indicates that Partner’s implementation includes a “Trial Review Period,” upon delivery of the GOOTEN Products listed in the Registration Form to Partner, Partner will have fifteen (15) days (the “Review Period”) to review and evaluate the GOOTEN Products. If Partner elects not to accept the GOOTEN Products, it must notify Gooten within the Review Period, in which case, Partner’s right to use the GOOTEN Products will terminate and be of no further force or effect. If Partner fails to notify Gooten of its intention to terminate this Agreement within the Review Period, the GOOTEN Products will be deemed accepted. Termination is Partner’s sole remedy and Gooten’s sole responsibility as a result of Partner’s decision not to implement the GOOTEN Products for any reason. We can revoke your license (and you can choose to end your license) at any time, for any reason. We won't take this lightly, but we do hold onto this right should it be needed. If either party terminates this license, you will need to remove the Gooten API from your code entirely and make sure that any new distributions of your app will have access to our API removed from it. We'll have the right to double-check to make sure you have. Terminating the agreement ends your ability to use our API. It doesn't change some of the other sections or remove your obligation to owed payments. Term and Termination These Terms shall be effective from the date of the applicable Registration Form and continue until terminated as set forth below, unless an applicable Registration Form provides for a fixed contract term. Either party may terminate any Registration Form or this Agreement at its own convenience on written notice to the other party. If either party materially breaches these Terms or the terms of a Registration Form (including failure to make any payment hereunder), the other party may terminate this Agreement immediately upon written notice of such breach to the breaching party. Any such termination may be limited to one or more Registration Forms, in which case, the consequences of termination will be limited to the subject matter of that Registration Form. This agreement will last from registration through written notice of termination (or in the case of pre-agreed upon end dates, until the end-date is reached). If either party breaches these terms, the other party has the right to terminate. Termination only applies to the particular agreement that has been breached (in cases where multiple agreements exist - for example if a partner has multiple apps). Consequences of Termination Upon termination or expiration of this Agreement or a Registration Form: (a) all Fees that are accrued as of the date of such termination shall become immediately due and payable; (b) Partner shall immediately return to Gooten, remove from the Partner Application or any website or web pages in which code from the GOOTEN Products that has been embedded, and cease all further use of, the GOOTEN Products and all copies of any documents, software, drawings, flow charts, structure charts, recording media and any other materials furnished to Partner or used by Gooten in connection with such Registration Form; and (c) any licenses granted to Partner under this Agreement shall immediately terminate. In addition, upon termination or expiration of this Agreement, each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party. Sections 7, 8, 9, 10, 11, 13, 15, 16, 17, 20 and 21 shall survive any termination or expiration of this Agreement. If this agreement terminates, the following will happen (a) any money owed will become immediately due, (b) You will remove Gooten from your app completely and otherwise return anything proprietary we have shared with you, (c) All licenses that are part of this agreement will also terminate. Lastly, we will both destroy any confidential information we have received from each other. Also, certain sections of this agreement will still survive termination - see the legalese for the exact list. Versions and Support Responsibilities Gooten will provide access to the then most-current version of the GOOTEN Products as of the effective date of each applicable Registration Form. Gooten provides not other technical support for Partner’s use or implementation of the GOOTEN Products unless specifically agreed to in writing by Gooten. Partner will be solely responsible for providing technical support to Partner’s end users or other customers. Except as set forth in a Registration Form, these Terms do not entitle Partner to any Gooten Product upgrades, unless Partner makes separate arrangements with Gooten. We'll provide the latest build of our app only, but you are not entitled to any upgrades (though of course you can download any that we make publicly available). We will not provide any other technical support unless we have a specific agreement in place. You are responsible to support your own users. Warranty Disclaimer THE PRODUCTS, THE GOOTEN SDK AND THE GOOTEN CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, GOOTEN AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE GOOTEN PRODUCTS, THE GOOTEN SDK AND THE GOOTEN CONTENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, GOOTEN DISCLAIMS ANY WARRANTY THAT PARTNER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. This SDK is provided completely as-is. It might be broken, or occasionally unavailable or have other issues (infringing on someone else's rights). Look, we really hope none of these things ever happen and will act as professionally as possible to make sure that's the case, but bottom-line, anything is possible: Use this at your own risk. Indemnity Partner agrees to defend (or settle), indemnify and hold harmless Gooten, its respective directors, officers, employees, agents, successors and assigns from and against any and all damages, liabilities, costs and expenses (including reasonable legal fees) payable to a third-party (collectively “Losses”) incurred as a result of a third-party claim, cause of action, judgment or proceeding relating to or arising out of the Partner Application or Partner Materials or any use of the GOOTEN Products in conjunction with the Partner Application or the Partner Materials. The foregoing indemnity obligations are conditioned upon Gooten providing Partner prompt written notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof. You indemnify us should a third party sue you relating to your use of Gooten's SDK. On our end, we are obligated to keep you in the loop, cooperate with you to the best of our ability and give you sole control over deciding how to proceed, should anyone with a legal claim reach out to either of us. Liability Limitation NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR ANY LIABILITY OR DAMAGES ARISING OUT OF SECTION 8 (CONFIDENTIALITY) OR SECTION 15 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES. IN NO EVENT SHALL GOOTEN’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT PAID (OR, IN THE CASE OF PARTNER, PAYABLE) TO GOOTEN BY PARTNER HEREUNDER; AND (B) FIVE THOUSAND DOLLARS ($5,000). BASICALLY: WE AGREE THAT WE CAN'T SUE EACH OTHER. But if for some reason you do sue us anyway (???), the most you can sue us for is how much you paid us (capped at $5,000). Government Use If Partner is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the GOOTEN Products are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. All GOOTEN Products are "commercial items," "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3. In accordance with such provisions, any use of the GOOTEN Products by the Government shall be governed solely by these Terms. If you work for the government, you probably should just double-check this particular section of legalese extra carefully. Export Controls Partner shall comply with all applicable export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Partner shall not export, or allow the export or re-export of the GOOTEN Products in violation of any such restrictions, laws or regulations. By downloading or using the GOOTEN Products, Partner agrees to the foregoing and represents and warrants that Partner is not located in, under the control of, or a national or resident of any restricted country. To those of you on the USA's embargo list, we respectfully apologize that our countries are currently being mean to each other and look forward to the day where we can do business together. Notices Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address set forth in a Registration Form or such other address as may be properly specified by written notice hereunder. Notices will be deemed effective upon receipt. All notices between the parties that are tied to this agreement must be delivered in writing. Miscellaneous These Terms and the terms contained in any Registration Forms which may supersede some of the items contained within this software license constitute the entire agreement between Partner and Gooten pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of these this Agreement shall be entitled to an award of its costs and attorneys' fees. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by Partner or others does not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement may not be assigned or transferred for any reason whatsoever by Partner without Gooten's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Notwithstanding the foregoing sentence, Partner may assign this Agreement to an entity that acquires all or substantially all of its assets by merger, acquisition or otherwise and Gooten expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder, provided Gooten will at all times remain liable for any such assignee or delegate.