Last Updated: March 30, 2016
Fyber SDK License Agreement for Publishers
This agreement (the “License Agreement”) is between the undersigned Publisher (“Publisher” or “You”) and Fyber GmbH (“Fyber”) (together, the “Parties”) regarding access or use of the Fyber SDK (as defined below). In the event that Fyber provided You access to and permitted use of the Fyber SDK, You accept and agree to be bound by this License Agreement. You represent that You have the authority to bind Yourself or the entity You represent to this License Agreement.
This License Agreement applies in addition to any existing agreement between Publisher and Fyber (and its affiliates, including Heyzap, Inc.). To the extent there is any conflict between the terms of this License Agreement and any other agreement between the Parties, this License Agreement will control with respect to the subject matter covered by this License Agreement.
1. Fyber SDK; License
“Fyber SDK” means software, software development kits, libraries, application program interfaces, documentation, sample code and related materials that Fyber makes available for use in connection with Fyber’s and its affiliates relationship with Publisher.
Subject to Your compliance with the terms of this License Agreement, Fyber grants You a personal, limited, revocable, non-exclusive, royalty-free, nontransferable, nonsublicensable license during the term of this License Agreement to access, use and reproduce the Fyber SDK or parts thereof solely for the purposes of developing, testing, and supporting software applications, games or websites and other digital products designed to operate with the Fyber platform (“Your Products”). You may use the Fyber SDK only in connection with the Fyber platform.
If the Fyber SDK includes any libraries, sample code, or other materials Fyber makes available specifically for incorporation in Your Products (as indicated by the applicable documentation), You may incorporate those materials in Your Products. You may also modify any such sample code to the extent necessary to incorporate it in Your Products. Fyber may modify or discontinue (including by ceasing our distribution of or support for) any or all of the Fyber SDK at any time upon notice and You are solely responsible for ensuring that Your Products function properly after any such modification or discontinuation.
You may access and use the Fyber SDK only as expressly authorized under this License Agreement, only for the purposes permitted by Section 1 hereto, and only through the interfaces and functionality Fyber has designated. You must comply with all instructions and requirements in any integration documents, guidelines, or other documentation that Fyber or its affiliates provide.
Except as permitted under Section 1 (including in any separate agreement between You and Fyber), You will not (a) incorporate or compile any portion of the Fyber SDK into your own programs or any other software, (b) distribute, sub-license or otherwise provide any portion of the Fyber SDK to any third party, or (c) modify or create derivative works of the Fyber SDK. You will not reverse engineer, disassemble or decompile the Fyber SDK. You will not use the Fyber SDK with any software or other materials that are subject to licenses or restrictions (e.g., open source software licenses) that, when combined with the Fyber SDK, would require Fyber to disclose, license, distribute or otherwise make all or any part of the Fyber SDK available to anyone.
The license granted in this Section 1 does not include any license, right, power or authority to subject the Fyber SDK in whole or in part to any terms of an Excluded License. An “Excluded License” is a license that requires as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (a) licensed for the purpose of making adaptations, alterations, derivative works, enhancements, modifications, improvements, updates, upgrades or translations (“Improvements”); or (b) prohibit the collection of a license or use fee for such software or Improvements of such software. Notwithstanding anything to the contrary, Excluded Licenses are deemed to include, without limitation, any version of the GNU General Public License (“GPL”) or GNU Lesser General Public License.
You will not remove, modify, or obscure any copyright, patent, trademark or other proprietary or attribution notices on or in any Fyber SDK component. All licenses granted to You in this License Agreement are conditional on Your continued compliance with this License Agreement, and will immediately and automatically terminate if You do not comply with any term or condition of this License Agreement.
To the extent the Fyber SDK is provided to You in open source, you will not disclose, without Fyber’s written consent, the open source code of the Fyber SDK, or any part thereof, to any third party, and you will not distribute or share in any way the open source code of the Fyber SDK for a period of three (3) years.
3. Reservation of Rights; Other Licenses
The Fyber SDK is the intellectual property of Fyber or its licensors. Except for the rights explicitly granted to You in this License Agreement, all right, title and interest in and to the Fyber SDK are reserved and retained by Fyber and its licensors. If you provide suggestions, ideas, or other feedback to Fyber about the Fyber SDK, Fyber will be free to exercise all rights in such feedback without restriction and without compensating You.
The Fyber SDK may include or be distributed with software or other materials that are provided under a separate license agreement (such as an open source license), and that separate license will govern the use of such software or other materials in the event of a conflict with this License Agreement. Any such separate license agreement may be indicated in the license, notice, or readme files distributed with the applicable software or other materials or in related documentation.
4. Disclaimer of Warranties and Limitation on Liability
THE FYBER SDK IS PROVIDED “AS IS” AND “WITH ALL FAULTS, DEFECTS AND ERRORS.” TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE FYBER SDK IS PROVIDED WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND NOT STATED HEREIN OR IN ANY RELATED AGREEMENT BETWEEN THE PARTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. YOUR USE OF THE FYBER SDK IS AT YOUR SOLE RISK. TO THE EXTENT PERMISSIBLE UNDER THE APPLICABLE LAW, FYBER AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING FOR ANY LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOST PROFITS OR DATA, OR COMPUTER FAILURE OR MALFUNCTION) ARISING FROM OR RELATING TO THE FYBER SDK OR THIS LICENSE AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF FYBER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND DISCLAIMERS APPLY EXCEPT TO THE EXTENT PROHIBITED BY OR LIMITED UNDER THE APPLICABLE LAW. FYBER AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY FOR ALL COSTS, LOSSES OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT WILL NOT EXCEED ONE THOUSAND DOLLARS ($1,000).
You release Fyber and will indemnify, defend (at Fyber’s option) and hold harmless Fyber and its affiliates, and their respective officers, directors, employees, and agents against any claim, loss, damage, settlement, cost, expense or other liability (including, without limitation, attorneys’ fees) arising from or related to (a) Your Products, (b) your breach or non-compliance with this License Agreement, and (c) unauthorized use of the Fyber SDK provided in connection with this License Agreement (each, a “Claim”). You will not consent to the entry of a judgment or settle a Claim without Fyber’s prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to Fyber to defend each Claim. If Fyber reasonably determine that a Claim might adversely affect Fyber’s or its affiliates’ interests or rights, Fyber may take control of the defense at its expense (and without limiting Your indemnification obligations). Your obligations under this section are independent of Your other obligations under the License Agreement.
6. Compliance with Laws
You will comply with all applicable laws, rules, regulations, orders, and other requirements of governmental agencies (together, “Laws”) in Your use of the Fyber SDK and in the development, distribution, and use of Your Products that use or access any Fyber SDK. You will not engage in any activity using or related to the Fyber SDK, including the development or distribution of Your Products, that (a) infringes, violates, or misappropriates the rights of us or any third party, or (b) interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies, or other properties or services of Fyber or its affiliates or of any end user, mobile operator, or other third party.
7. Agreement Changes/Modifications
Once You have agreed to the terms of this License Agreement, changes to this License Agreement will be made in writing and signed by both Parties with the changes effective as of the date determined in the counter-signed amendment to this License Agreement. If You download new versions of the Fyber SDK, the current version of the License Agreement will apply to the new version.
You may terminate this License Agreement at any time by uninstalling and destroying all copies of the Fyber SDK that are in Your possession or control. Fyber may terminate this License Agreement or Your right to use any or all of the Fyber SDK at any time giving a reasonable advance notice to You. In the case of termination, You must cease all use and destroy all copies of the Fyber SDK. The following provisions of this Agreement will survive termination of this Agreement: Sections 2 through 6 and Sections 8 and 9.
If any provision of this License Agreement is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of this License Agreement will remain in full force and effect. Fyber’s failure to insist upon or enforce Your strict compliance with this License Agreement will not constitute a waiver of any of our rights. The word “including” will be interpreted without limitation when used in this License Agreement. This License Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice of law rule. You agree that any dispute arising under this License Agreement will be resolved in the state or federal courts in San Francisco County, California, and waive any jurisdictional, venue or inconvenience forum objections to such courts. Nothing in this License Agreement will prevent You or Fyber from seeking injunctive relief (or any other provisional remedy or equitable relief) from any court having jurisdiction in order to protect any and all of Your or Fyber’s rights. Consider arbitration Notices to You under this License Agreement may be made via posting to fyber.com or by e-mail (including in each case via links), or by regular mail. You may contact Fyber by email at: email@example.com.