1. Introduction
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
This Platform Science Marketplace Agreement (this “Agreement”) is effective (the “Effective Date”) upon the date you accept this Agreement by clicking the “I Agree” or similar button or otherwise indicate acceptance of this Agreement (including through a Fee and Data Usage Schedule).
This Agreement is by and between you (“Developer”, “You”, and/or “Your” as the context may require), and Platform Science, Inc., a Delaware corporation (“Platform Science”, “us, and/or “we” as the context may require) (each, a “Party”, and collectively, the “Parties”).
Platform Science may, in its sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to https://platform-science.webflow.io/marketplace-terms (or such other URL as specified by us), as may be updated by us from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we will notify you no less than thirty (30) days prior to implementation of such changes. Upon any changes materially adverse to Developer (which are not required by applicable law, rule, or regulation), Developer may, in its reasonable determination, terminate this Agreement as provided in Section 6.1 herein without any penalty or liability. Unless such notice is provided, your continued distribution to Customers of Developer Service(s) (defined below) after the "Last Updated” date will constitute your acceptance of and agreement to such updates. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The “Last Updated” field at the top of the Agreement indicates when it was last changed. For those terms and policies which are incorporated by reference, Platform Science shall provide no less than thirty (30) days advance notice prior to making any material changes .
Developer and Platform Science agree as set forth below.
AGREEMENT
1. Scope of Agreement.
1.1 Defined Terms. Capitalized terms used herein shall have the meanings set forth as follows:
(a) Confidential Information – Confidential or proprietary information disclosed by one Party to the other in connection with this Agreement or the SDK License Agreement which (a) is identified as confidential by the disclosing Party at the time of disclosure; (b) is conspicuously marked as “confidential” or “proprietary,” if disclosed in writing; or (c) would reasonably be deemed to be confidential under the circumstances taken as a whole. In the course of performance of this Agreement, Platform Science and Developer may exchange confidential information, including but not limited to, (i) business, marketing, operations and/or technical information; (ii) trade secrets, copyrights, patentable and patented inventions, and other intellectual property rights; (iii) source and object codes; and (iv) financial statements, financing documents, dealings and arrangements. For the avoidance of doubt, as between the Parties, any “Customer Data” (including any “Personal Data”, as each such term is defined herein) is the Confidential Information of Platform Science (which still remains subject to Section 3.5 (Limitations and Conditions on Developer’s Use of Data supplied by Platform Science or through the Platform)), as is the pricing, revenue share and other material terms of this Agreement and any Fee and Data Usage Schedule, the Platform Science API, and the terms in the Platform Science Developer Portal are deemed Confidential Information of Platform Science regardless of whether the foregoing bears any legend.
(b) Customer(s) – The authorized entity that has entered into an agreement with Platform Science to utilize the Platform, which may include the enablement of Developer Service(s), for use by their End Users.
(c) Customer Catalog – Subset of Platform Science Catalog containing Platform Science Approved Applications and approved Platform Science Extensions selected by Customer for distribution and download to or use by Customer’s authorized End User(s).
(d) Customer Data - All data relating to Platform Science or Customers (or their End Users or vehicles) that is provided or otherwise made available to Developer by Platform Science, through the Platform Science Platform, or which is otherwise obtained or accessed by Developer in connection with the services contemplated by this Agreement. Customer Data may include Personal Data.
(e) Customer Guidelines – Additional restrictions or requirements provided by a Customer who has entered into an agreement for Developer Service(s).
(f) Data Protection Laws – All applicable international, federal, national and state privacy and data protection laws and regulations.
(g) Data Security Incident – Any accidental, unauthorized or unlawful access, acquisition, theft, destruction, or disclosure of Customer Data that occurs while such Customer Data is in the possession of or under the control of Developer or its vendors or agents.
(h) Data Subject - The identified or identifiable natural person to whom Personal Data relates.
(i) Developer Service(s) – Developer’s RPM Enabled Application(s) (and, for the avoidance of doubt, Platform Science Approved Application(s)), Platform Science Extension(s), or other Developer software solution(s) that the Parties mutually and expressly agree in an applicable Fee and Data Usage Schedule is subject to the terms and condition of this Agreement.
(j) End User – Customer’s employees, consultants, contractors and agents who are authorized to access and use the Platform Science Approved Applications or Platform Science Extensions, as the case may be.
(k) Feedback - Any feedback, comments, suggestions, ideas for improvement or other communications regarding any Platform Science products, services, hardware, software, technologies or interoperability, and any intellectual property rights in any of the foregoing.
(l) Harmful Code - (i) viruses, worms, trojan horses, or other code that might disrupt, disable, harm, erase memory, or otherwise impede the operation, features, or functionality of any software, firmware, hardware, wireless device, computer system or network; (ii) traps, time bombs, or other code that would disable any software or the Developer Service(s) based on the elapsing of a period of time, advancement to a particular date or other numeral; or (iii) code that would permit Developer or any third-party to access the Developer Service(s) to cause disablement or impairment.
(m) Partner Solution Data Mapping and Usage Table – Must be completed by Developer and submitted in the applicable Fee and Data Usage Schedule for each Developer Service contemplated by this Agreement. Developer’s submitted Partner Solution Data Mapping and Usage Table must provide: (i) all Customer Data to be utilized from the Platform Science Platform; (ii) the purposes for which Developer will be using each specific data field utilized from the Platform Science Platform; and (iii) the universal resource locator (“URL”) for Developer’s applicable end user license agreement (“EULA”) that a Customer executes or accepts in order to utilize the Developer Service. Developer represents and warrants that the completed Partner Solution Data Mapping and Usage Table submitted to Platform Science is complete and accurate, and Developer will provide both Platform Science and all applicable Customers no less than one hundred twenty (120) days advance written notice prior to any updates to any Partner Solution Data Mapping and Usage Table becoming effective. Further, Developer acknowledges and agrees that the completed Partner Solution Data Mapping and Usage Table (and any updates thereto) will be shared by Platform Science with Customers and/or prospective Customers and Developer, not Platform Science, will be responsible to address any questions or concerns raised by such parties.
(n) Personal Data - Information relating to an identified or identifiable natural person. An identifiable natural person is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as (but not limited to) a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
(o) Platform Science Platform (or Platform) – A platform comprised of a combination of hardware, software, cloud, web, mobile device and back-office tools and services that are hosted or managed by Platform Science.
(p) Platform Science API – Platform Science application programming interface.
(q) Platform Science Approved Applications – RPM Enabled Applications that have been SPEED Certified/approved by Platform Science pursuant to the terms and conditions hereof for inclusion in the Platform Science Catalog (or Customer Catalog(s)) and managed by the RPM System.
(r) Platform Science Catalog – Aggregate list of all Platform Science Approved Applications and approved Platform Science Extensions available for download or use by Customers.
(s) Platform Science Developer Portal – Platform Science online access site for Developer regarding certain Platform Science resources and documentation.
(t) Platform Science Device – A hardware platform certified by Platform Science in writing.
(u) Platform Science Device Software – Platform Science proprietary software and databases contained in Platform Science Devices.
(v) Platform Science Extension – Software extensions that have been developed by Developer using the Platform Science SDK or Platform Science API that are submitted for approval to Platform Science as provided herein. Platform Science Extensions provide services that do all of the following: (i) interface with software-based services developed by the Developer that provide information and related services to Customers; (ii) access data from the Platform Science cloud, data queue or device and use the data to provide any information to Customers that are also Developer’s customers; (iii) do not require an application on the vehicle or for use by the driver, do not need to execute locally on a Platform Science Device on the vehicle and there is no data pushed to the driver; and (iv) utilize interfaces written by the Developer or Platform Science that in either case use the Platform Science SDK or the Platform Science API to either embed new functionality for developers who use the Platform Science API, or to extract data through the Platform Science API. Platform Science shall have the sole discretion to determine whether software is a Platform Science Extension or not in accordance with its criteria.
(w) Platform Science SDK – Platform Science software development kit.
(x) Platform Science SDK License Agreement – Accessible at https://www.platformscience.com/sdk-terms (or such other URL as specified by Platform Science), as may be updated by Platform Science from time to time is hereby incorporated by reference into this Agreement as if set forth fully herein. Access to, and utilization of, the Platform Science SDK is contingent upon Developer’s agreement to the Platform Science SDK License Agreement.
(y) Platform Science SPEED Certification or SPEED Certification – Review and approval process of submitted RPM Enabled Applications performed by Platform Science and, if successfully completed, results in an RPM Enabled Application becoming a Platform Science Approved Application. Further details are accessible at https://www.platformscience.com/speed-certification
(z) Remote Platform Management (RPM) System – The Platform Science system used to manage applications and extensions and deliver data to and from these applications and extensions.
(aa) RPM Enabled Application – Software-based services that operate through an Android software application or Platform Science web infrastructure, that have been developed by Developer using the Platform Science SDK or Platform Science API.
1.2 Certain Platform Science Responsibilities.
Subject to the terms and conditions of this Agreement, and Customer approvals where applicable, Platform Science will:(a) make available, on behalf of Developer, associated Developer Service(s) in the Platform Science Catalog (or in select Customer Catalog(s)) for downloading and use by Customers, subject to the execution of an applicable Fee and Data Usage Schedule; (b) use commercially reasonable efforts to provide Level 1 support to Customers with respect to issues related to Developer’s Platform Science Approved Applications; and (c) fulfill its obligations as otherwise expressly set forth in a “Fee and Data Usage Schedule” executed and delivered by both Parties.
1.3 Certain Developer Responsibilities.
1.3.1 Throughout the Term (defined below), Developer agrees to provide the following at no additional cost or expense to Platform Science and/or Customers (as applicable): (a) collaboration with Platform Science with respect to developing business with Customers and creating and maintaining a go-to market strategy; (b) training to Platform Science personnel, including for new features or functionality as they are released; (c) necessary materials and training for Platform Science to market and promote the availability of Developer Service(s); (d) necessary materials and training for Platform Science to provide Level 1 support for Developer’s Platform Science Approved Applications; (e) level 2 and 3 support to both Platform Science and Customers for Developer’s Platform Science Approved Applications and/or level 1, 2 and 3 support to both Platform Science and Customers for Developer’s Platform Science Extensions as applicable; (f) a technical point of contact for Platform Science and for Customers and their End Users; (g) a telephone number and group email address to contact Developer support staff; (h) no less than five (5) calendar days advance notice to Platform Science and Customers of any planned downtime; (i) timely identification and deployment of enhancements and bug fixes; and (j) fulfill its obligations as otherwise expressly agreed in a Fee and Data Usage Schedule.
1.3.2 Developer acknowledges and agrees that the obligations listed in Section 1.3.1 (d) through (j) shall continue for a period of at least sixty (60) days after such application is removed from the Platform Science Catalog (and the last Customer Catalog).
1.3.3 Developer acknowledges and agrees that use of the Platform Science SDK, which includes the Platform Science API, is subject to the terms and conditions of that certain Platform Science SDK License Agreement previously or contemporaneously executed and delivered by each of the Parties. To the extent of an express conflict between the terms of the SDK License Agreement and this Agreement, this Agreement shall prevail.
1.4 Developer Data Security and Privacy Practices Approval.
1.4.1 If Developer has a current SOC 2 Certificate with respect to its data security and privacy practices, Developer shall provide it to Platform Science prior to the Effective Date of this Agreement and shall promptly notify Platform Science in writing of any change in status of the same.
1.4.2 Notwithstanding anything to the contrary in this Agreement, unless and until Developer has submitted and Platform Science has approved (i) a completed a Partner Solution Data Mapping and Usage Table in in an applicable Fee and Data Usage Schedule (executed and delivered by the Parties), and (ii) a completed Solution Partner Privacy and Security Questionnaire, Platform Science is under no obligation to provide any services to Developer hereunder, to make Developer Service(s) available to any Customer(s), or make any data of any Customers available to Developer. Additionally, upon each yearly anniversary of the Effective Date, Partner shall either: (a) represent and warrant that there are no changes to the prior submitted Solution Partner Privacy and Security Questionnaire; or (b) submit an updated Solution Partner Privacy and Security Questionnaire for review and approval by Platform Science.
2. Licenses.
2.1 License to Platform Science for Developer Service(s) and associated documentation. During the Term, Developer hereby grants to Platform Science, under all of Developer’s intellectual property rights, a world-wide, assignable (as permitted under Section 15.6 herein), fully paid-up and royalty-free (subject to the terms and conditions of this Agreement) non-exclusive license as well as any other rights necessary or incidental to the exercise of the following rights and licenses to:
(a) reproduce and test and otherwise use each RPM Enabled Application to confirm it passes the SPEED Certification, and to reproduce and test each Platform Science Extension to confirm it passes Platform Science certification;
(b) reproduce each Developer Service in the Platform Science Catalog;
(c) demonstrate, reproduce, make available, and distribute each Developer Service and any related documentation in the Platform Science Catalog (or in any Customer Catalog) and otherwise on Platform Science's website for use by Customers, or in marketing to Customers or prospective customers;
(d) demonstrate each Developer Service to wireless device manufacturers, vehicle OEMs, software and hardware vendors and similar parties working on solutions for Platform Science to providers services to Customers; and
(e) have third-parties exercise the rights provided in subpoints (a)-(d) above on behalf of Platform Science, subject to Section 8.1 confidentiality obligations.
2.2 License Restrictions. Except if permitted under this Agreement or by applicable law, Platform Science agrees it (a) will not modify, reverse assemble, reverse compile or reverse engineer Developer Service(s), and (b) will not remove, efface, or obscure any copyright notices, logos or other proprietary notices or legends included in Developer Service(s) or related documentation.
3. Certain Operational Provisions.
3.1 SPEED Certification™. Developer acknowledges that an RPM Enabled Application and Platform Science Extension must be submitted for evaluation and approval before release through Speed Certification and agrees to provide all documentation and information requested by Platform Science. Platform Science reserves the right to accept or reject an RPM Enabled Application and/or Platform Science Extension.
3.2 Developer End User License Agreement for Customer. Developer shall provide the URL for its end user license agreement for each of its Developer Service(s) subject to this Agreement (the “EULA”), and Developer shall make such EULA accessible to Platform Science and each Customer at the provided URL at all times during the Term. Developer acknowledges and agrees that: (a) Platform Science is not a party to the EULA and Platform Science is not responsible for execution of the EULA between Customer and Developer; (b) Developer shall not make any modification to the terms of its EULA without providing at least thirty (30) days prior written notice to Platform Science and Customers and any such modifications shall remain subject to the requirements of this Agreement; and (c) the Developer’s EULA and any such modifications may not violate the terms specified in this Agreement. Platform Science reserves the right to separately notify Customers of Developer’s EULA and any subsequent updates.
3.3 Access to Platform Science on Platform Science Devices. Developer acknowledges and agrees that Platform Science reserves the right to prevent the operation of any executable software applications or extensions (or services available therefrom) written with the Platform Science SDK or using the Platform Science API . In addition, Developer acknowledges and agrees that software applications which use, access or otherwise make calls, directly or indirectly, to a Platform Science Device will only operate if the owner of such Platform Science Device is a current Customer.
3.4 Platform Science’s Provision of Customer Data. Platform Science represents and warrants that it has obtained, or will obtain, sufficient rights or licenses from each Customer who has agreed with Platform Science to receive Developer Service(s) to provide such specific Customer’s Customer Data to Developer for purposes of and subject to the terms and conditions of this Agreement.
3.5 Limitations and Conditions on Developer’s Use of Customer Data. Developer hereby agrees to the Limitations and Conditions on Developer’s Use of Customer Data which can be viewed at https://www.platformscience.com/customer-data
3.6 Modifications. Developer acknowledges and agrees that Platform Science may modify the API, API calls, any Platform Science Apps, the Platform, the Platform Science Portal, the Documentation, and any of the features provided in connection with the foregoing (a “Modification”) at any time by providing at least sixty (60) days’ prior written notice to Developer. Platform Science will support the previous API before any such Modification for a period of six (6) months from the date of the notice of any Modification (the “Backward Compatibility Period”); provided, however, no such notice or support is guaranteed with respect to Critical Updates. As used herein “Critical Updates” means updates that are required to fix major software issues that have rendered the Platform materially inoperable or unusable, or which are needed to fix urgent or material security issues. Platform Science will notify Customer of such Critical Updates as soon as is reasonably practicable. Developer understands that it is responsible for making any changes to any Developer Service(s) that may be required or desirable as a result of such Modification(s) during the Backward Compatibility Period. Platform Science shall have no liability of any kind to Developer or any user of the Developer Service(s) with respect to such Modifications or any adverse effects resulting from such Modifications.
3.7 Purchaser or Licensee of the Platform Science Approved Application or Platform Science Extension. Developer agrees that, (a) except to the extent expressly provided for in Section 2.1 of this Agreement, Platform Science is not purchasing and is not a licensee for use of the Developer Service(s) (or the products or services therefrom); (b) each Customer that downloads or uses Developer Service(s) is the purchaser or licensee for use of such Developer Service(s) (or services available therefrom) directly pursuant to an agreement between Developer and such Customer; and (c) Platform Science shall have no liability or other obligation to Developer whatsoever with respect to any use of or the failure to use any Developer Service by any Customer.
4. Brand Features.
4.1 As between the Parties, each Party will own all right, title, and interest, including, without limitation, all intellectual property rights, relating to its brand features. Subject to the terms in this Agreement, Platform Science hereby grants to Developer a revocable, non-exclusive, non-transferable, limited license (without the right to sublicense), to reproduce, use and display the Platform Science logo (the "Platform Science Logo") in Developer's promotional materials for its Developer Service(s). This license may be terminated by Platform Science at any time upon written notice to Developer.
4.2 Developer's use of the Platform Science Logo shall be in accordance with Platform Science's guidelines located at: https://www.platformscience.com/brand-resources as may be amended by Platform Science from time to time (the “Branding Guidelines”).
4.3 Notwithstanding any confidentiality agreement, Developer agrees that Platform Science may include Developer's name, logo and other information about Developer and Developer Service(s) in Platform Science's Developer List to identify Developer as a developer of Platform Science RPM Enabled Applications or Platform Science Extensions, including, without limitation, the Platform Science list of developers on Platform Science's website located at https://www.platformscience.com/apps-integrations (or such other URL as specified by Platform Science), as may be updated by Platform Science from time to time. Platform Science's use of Developer's logo or trademarks shall be in accordance with Developer's applicable trademark usage guidelines, as provided by Developer to Platform Science in writing from time to time during the term of this Agreement. Except as expressly provided herein, Platform Science shall not otherwise use any Developer logo or trademark without Developer's prior consent. Should Developer notify Platform Science that the use of Developer’s logos or trademarks does not conform to Developer’s applicable trademark usage guidelines, Platform Science shall cease use of such logos and trademark, bring such use into conformance and shall provide to Developer a specimen of such conforming use.
5. Pricing, Billing, and Payment Terms.
5.1 Pricing, Billing, and Payment. The pricing, billing units, and estimated data usage for each Developer Service are set forth in the applicable Fee and Data Usage Schedule executed and delivered by the Parties. Upon prior written notice to Platform Science, Developer may change the dollar amounts to be paid by Customers set forth on the applicable Fee and Data Usage Schedule; provided, however, no such increase shall be effective as to (a) current Customers; and (b) any new entities becoming Customers within six months after the date Platform Science receives such notice from Developer; provided, further, the respective revenue share percentages between Platform Science and Developer shall remain the same unless this Agreement is amended in a written instrument executed and delivered by both Parties.
5.2 Revenue Share. Unless otherwise agreed by the Parties, Platform Science will bill the Customer at the price per unit as provided in the applicable Fee and Data Usage Schedule and on the number of units in the Customer’s fleet as determined by Platform Science in good faith. Platform Science will divide up revenue received, at a ratio of seventy percent (70%) to the Developer and thirty percent (30%) for Platform Science for Platform Science Approved Applications and at a ratio of eighty percent (80%) to the Developer and twenty percent (20%) for Platform Science for Platform Science Extensions, and pay Developer for its pro-rata portion of revenue received. For this calculation, revenue received will be reduced dollar-for-dollar by amounts paid to Platform Science’s distributors, channel partners, and other resellers with respect to such revenue. All revenue calculations are subject to the terms and conditions of this Agreement. Platform Science will, on request, but not more than once a year, certify that the calculations have been correctly made per the Agreement. Platform Science and Developer may mutually agree in writing upon custom pricing for a specific Customer but, unless and to the extent otherwise expressly agreed in writing by the Parties, the revenue share shall be subject to the ratio defined above.
5.3 Pricing and Revenue Share Confidentiality. Developer agrees that the terms and conditions of this Agreement (and any Fee and Data Usage Schedule), including, without limitation, those concerning Developer Service pricing or revenue share, are the Confidential Information of Platform Science, and may not be shared with any individual or organization without the express prior written approval of Platform Science. Any violation of the foregoing shall be deemed to be a material breach of this Agreement.
5.4 Payments to Developer.5.4.1 Billing and Payment. Subject to the terms and conditions of this Agreement, Platform Science agrees to pay to Developer on behalf of the Customer in question, Developer revenue share as set forth in Section 5.2 herein for such Customer’s downloading or use of Developer Service(s) for which Platform Science receives payment from the Customer in question. Platform Science shall have sole discretion to determine if Customer has downloaded or used such service in a given month. If a Customer is not paying Platform Science with respect to such service or there is otherwise a billing dispute with respect to the same, Platform Science shall notify Developer thereof, and thereafter Platform Science and Developer shall consult with each other in good faith in an effort to determine if a mutually agreeable course of action with respect to such Customer is warranted and can be mutually agreed upon. In addition, amounts owed to Developer will be adjusted to reflect amounts that Platform Science is unable, despite good faith efforts, to collect from Customers and other adjustments or credits given in good faith by Platform Science to Customers, including without limitation any billing reconciliation. Further, if a Customer is required under local law or otherwise to withhold taxes or other amounts from payments due Platform Science for its use of Developer Service(s), or Platform Science is required under local law or otherwise to remit taxes or other amounts with respect to the payments due Platform Science for such service, then the amount payable by Platform Science to Developer will be reduced by the amount of taxes and fees.
5.4.2 Timing of Payment. Unless otherwise provided in this Agreement, payment of amounts owed to Developer under Section 5.2 above will be made within thirty (30) days after the end of each calendar month in which Platform Science receives payment from a Customer for the Developer Service(s), and shall be accompanied by Platform Science-provided documentation setting forth the calculation of such payment to Developer.
5.5 Costs and Expenses. Developer agrees that Developer is solely responsible for all costs and expenses incurred by Developer in connection with this Agreement, including, but not limited to, the development of Developer Service(s).
5.6 Refunds. Developer authorizes Platform Science to give refunds in the event that Developer Service(s) fails to conform to its specifications, its warranty, or the requirements of any applicable law, as determined by mutual agreement (not to be unreasonably withheld, delayed or conditioned) between the Parties. Developer agrees that Platform Science may deduct the amount of those refunds from payments to the Developer.
5.7 Taxes. All taxes of any nature that are attributable to payments due to Developer under this Agreement, except taxes imposed on Platform Science’s net income, shall be borne by Developer. Developer and Platform Science agree to cooperate to minimize withholding taxes, income and value added taxes and any other taxes that may be imposed on payments due under this Agreement.
6. Term, Termination, and Wind-Down Period.
6.1 Term and Termination. This Agreement will commence as of the Effective Date and will remain in effect until terminated as provided herein (including any applicable Wind-Down Period (defined below) (collectively, the “Term”). Either Party may terminate this Agreement, with or without cause, upon thirty (30) days prior written notice to the other Party. Upon termination of this Agreement, Platform Science agrees to remove from the Platform Science Catalog, all Developer Service(s) submitted by Developer hereunder. Developer acknowledges that the termination of this Agreement does not terminate the rights or licenses of Customers who have entered into an agreement for such Developer Service(s) prior to the date of termination of this Agreement. Upon any termination or expiration of this Agreement, each Party shall, within a reasonable time, pay to the other Party any amounts that became due prior to termination or expiration.
6.2 Wind-Down Period. In the event that this Agreement is terminated pursuant to Section 6.1, Developer shall continue to provide and support the services described in this Agreement to existing Customers for the earlier of either: (a) six (6) months after the effective date of termination; or (b) use by any existing Customers has ended (the “Wind-Down Period”). The Parties each acknowledge and agree that the purpose of the Wind-Down Period is to conclude existing obligations to Customers while minimizing any disruption of service. As such, each Party shall continue to perform its obligations under this Agreement throughout the Wind-Down Period. This Section 6.2 shall survive any termination or expiration of this Agreement.
7. Removal or Suspension of a Platform Science Approved Application or Platform Science Extension.
7.1 Removal from the Platform Science Catalog by Developer. Subject to applicable law which may allow a different timetable, Platform Science will use commercially reasonable efforts to remove specified Developer Service(s) from the Platform Science Catalog within thirty (30) days after receipt of written notice from Developer requesting such removal. Developer acknowledges that any such removal from the Platform Science Catalog does not terminate the rights or licenses of Customers who have entered into an agreement with Platform Science for such Developer Service(s) prior to the date of removal.
7.2 Removal or Suspension by Platform Science. Platform Science does not undertake an obligation to monitor Developer Service(s). Notwithstanding the foregoing, Platform Science has the right to: (a) analyze and use performance measurements from Developer Service(s) to identify whether use of Developer Service(s) is causing technical or security problems or other problems that limit or prevent proper operation of the Platform, inclusive of excess data usage or significant negative feedback from Customers, as determined by Platform Science; and (b) upon reasonable cause: (i) to refuse to include or immediately remove Developer Service(s)in the Platform Science Catalog (or in any Customer Catalog), and (ii) to immediately prevent any further downloading or use of Developer Service(s) by any Customer. For purposes of the foregoing, "reasonable cause" includes, without limitation, Platform Science's determination that Developer Service(s) (i) disrupts or has the reasonable potential to disrupt any services offered by Platform Science or any third-party; (ii) violates any right, including any intellectual property right, of Platform Science or any third-party; (iii) violates any applicable law or governmental regulation; (iv) violates any term of this Agreement; or (v) subjects Platform Science to any actual or reasonably potential harm or other liability. Platform Science shall endeavor to provide Developer thirty (30) days’ prior notice to correct the issue where commercially reasonable as determined by Platform Science’s sole discretion in good faith.
8. Confidentiality.
8.1 Obligation to Maintain Confidentiality. The receiving Party shall exercise the same degree of care to prevent unauthorized use or disclosure of Confidential Information of the disclosing Party to others as it takes to preserve and safeguard its own Confidential Information, but in any event, no less than a reasonable degree of care. The receiving Party shall use the Confidential Information of the disclosing Party only for the purpose of enabling each of the Parties to perform its business relationship with the other as described in this Agreement. The receiving Party shall not directly or indirectly disclose such Confidential Information to any person or company without the prior written approval of the disclosing Party; provided however, that the receiving Party may disclose the Confidential Information to its (a) employees who have a need to know such Confidential Information in connection with this Agreement and who have been advised of the confidentiality obligations hereunder; or (b) agents or contractors who have executed a nondisclosure agreement affording at least the same confidentiality obligations as described herein. Each party will be responsible and liable for the actions of its employees, agents, or contractors for maintaining the confidentiality commitments of this Section 8.
8.2 Exclusions. The restrictions on the receiving Party’s use and disclosure of Confidential Information shall not apply to any Confidential Information which the receiving Party can demonstrate: (a) is wholly and independently developed by the receiving Party without the use of Confidential Information of the disclosing Party; (b) is or has become generally available to the public without breach of this Agreement by the receiving Party; (c) at the time of disclosure, was known to the receiving Party and free of restriction; or (d) is approved for release by written authorization of the disclosing Party.
8.3 Requests for Disclosures. Disclosure of Confidential Information in response to a valid order of a court or other governmental agency shall not be a breach of this Section, if the disclosure is limited to the extent of and for the purposes of such order; provided, however, that the receiving Party shall first notify the disclosing Party in writing of the order and permit the disclosing Party to seek a protective order, unless such notification is otherwise prohibited by law.
8.4 Ownership; Return of Confidential Information. Any and all Confidential Information disclosed shall remain the property of the disclosing Party. Within ten (10) days following: (a) the receipt of a written notice by the disclosing Party, or (b) termination of this Agreement, the receiving Party shall, at the disclosing Party's option, either promptly return to the disclosing Party, or destroy and certify that it has destroyed, all copies in its possession or control of any and all documents, computer files and other materials that contain any Confidential Information of the disclosing Party. To the extent any portion of the Confidential Information is retained on the receiving Party’s information systems following the receiving Party’s good faith effort to delete the Confidential Information, the receiving Party agrees to protect the Confidential Information in the same manner and to the same extent that it uses to protect its own confidential and proprietary information for so long as it retains the Confidential Information.
9. Intellectual Property Rights.
9.1 Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Platform Science any of Developer and/or Developer's licensor(s)’ intellectual property rights in or to each Developer Service submitted by Developer, including all copyrights and other intellectual property rights therein, and nothing in this Agreement transfers or assigns to Developer any of Platform Science’s and/or any of Platform Science’s licensor(s)’ intellectual property rights in or to the Platform, the Platform Science Developer Portal, Platform Science SDK, the Platform Science API, the Platform Science Marks, or Platform Science’s other technology, products, software, hardware or services (collectively, the “Platform Science IP”). No other rights or licenses are granted to Developer except to the extent as expressly set forth herein. All rights not expressly granted herein are hereby reserved.
9.2 All copies of Platform Science IP or Developer’s materials permitted under this Agreement must bear the same copyright and other intellectual property rights notices as delivered to the other Party.
9.3 Developer agrees that any Feedback provided by or on behalf of Developer to Platform Science in connection with, arising out of or related to this Agreement shall belong non-exclusively to Platform Science, and Platform Science shall be free, without any obligation whatsoever to Developer, to use such Feedback in any manner.
10. Non-Exclusivity.
The relationship between Developer and Platform Science under this Agreement is non-exclusive. Nothing in this Agreement will impair either Party’s right to develop, acquire, license, market, promote or distribute products, software, technologies or services that perform the same or substantially similar functions as, or otherwise compete with, any other products, software or technologies that the other Party may develop, produce, market, or distribute; provided that (a) such products, software, technologies or services are developed independently without copying the other Party’s products, software or technology and without reference to any Confidential Information (as such term is defined in Schedule 1 of this Agreement) of the other Party, and (b) with respect to Developer only, that such products, software or technologies are developed independently from and without reference to or use of the Platform Science API.
11. Representations, Warranties and Covenants.
11.1 By Developer.
11.1.1 No Viruses, etc. Developer represents, warrants and covenants to Platform Science for each RPM Enabled Application and Platform Science Extension submitted by Developer: (a) it will not knowingly include; and (b) will use industry standard methodologies to scan for Harmful Code. This warranty shall not apply to the extent that such RPM Enabled Application or Platform Science Extension, as submitted by Developer, is thereafter modified by a party other than Developer without Developer's consent. Developer acknowledges that SPEED Certification and digital signature by Platform Science shall not constitute modification of an RPM Enabled Application or Platform Science Extension.
11.1.2 Legal Right and Authority. Developer further represents, warrants and covenants to Platform Science that: (i) by virtue of entering into this Agreement, Developer is not and will not be in breach of any express or implied obligation to any third-party binding upon it; and (ii) Developer has the legal right and authority to enter into this Agreement, and perform its obligations under this Agreement.
11.1.3 No Misleading Materials, etc. Developer further represents and warrants that the information (including without limitation Developer’s approved Partner Solution Data Mapping and Usage (and any updates thereto), marketing materials, specifications or similar documentations regarding RPM Enabled Applications, Platform Science Extensions and any services available therefrom Developer provides to Platform Science and Customers during the term of this Agreement is complete and accurate and does not contain any false or misleading statements. Developer acknowledges that Platform Science is materially relying on Developer’s representations in the Partner Solution Data Mapping and Usage (and any updates thereto). If any such representation is determined to be false, inaccurate, or otherwise untrue, Platform Science shall have the right, in its reasonable discretion, to terminate this Agreement for cause without any further liability to Developer and seek all available legal and equitable remedies.
11.2 By Platform Science.
11.2.1 Platform Science represents, warrants and covenants to Developer that: (a) it will not knowingly include and (b) will use industry standard methodologies to scan for Harmful Code except as permitted hereunder.
11.2.2 Platform Science further represents, warrants and covenants to Developer that: (i) by virtue of entering into this Agreement, Platform Science is not and will not be in breach of any express or implied obligation to any third-party binding upon it; and (ii) Platform Science has the legal right and authority to enter into this Agreement, and, to its knowledge, perform its obligations under this Agreement.
11.3 Platform Operator Protections. Developer agrees, on its and its affiliates’ behalf, not to assert, or authorize or assist anyone else in asserting, against Platform Science (or its distributors, customers, or suppliers) any claims for intellectual property rights infringement with respect to any third-party applications or extensions (or services or products available therefrom) that use the Platform Science API or that are otherwise available on the Platform. The foregoing shall be binding upon any transferees or successors in interest to any intellectual property rights now owned or hereafter acquired by Developer or any of its affiliates.
11.4 DISCLAIMER. EXCEPT TO THE EXTENT EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT, PLATFORM SCIENCE DISCLAIMS ALL LIABILITY RELATED TO THE PLATFORM SCIENCE IP AND ANY OTHER MATERIALS, INFORMATION OR SERVICES PROVIDED OR MADE AVAILABLE BY PLATFORM SCIENCE TO DEVELOPER UNDER OR RELATED TO THIS AGREEMENT. PLATFORM SCIENCE MAY STOP PROVIDING AND/OR SUPPORTING THE API OR THE PLATFORM SCIENCE APPS AT ANY TIME. THE API AND PLATFORM SCIENCE APPS ARE PROVIDED “AS IS”. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.2 OF THIS AGREEMENT, PLATFORM SCIENCE DOES NOT MAKE, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE. PLATFORM SCIENCE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE API OR THE PLATFORM SCIENCE APPS WILL MEET DEVELOPER’S PARTICULAR REQUIREMENTS, OR THAT THE OPERATION OF THE API OR THE PLATFORM SCIENCE APPS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE API OR THE PLATFORM SCIENCE APPS WILL BE COMPATIBLE WITH ANY OTHER HARDWARE OR SOFTWARE. DEVELOPER ASSUMES SOLE RESPONSIBILITY FOR THE SELECTION OF THE API AND/OR PLATFORM SCIENCE APPS TO ACHIEVE DEVELOPER’S INTENDED RESULTS, AND FOR THE INSTALLATION AND USE OF, AND THE RESULTS OBTAINED THROUGH THE USE OF, THE API AND/OR THE PLATFORM SCIENCE APPS. PLATFORM SCIENCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO DEVELOPER REGARDING THE NUMBER OF CUSTOMERS THAT WILL DOWNLOAD OR USE DEVELOPER SERVICE(S).
12. Indemnification.
Developer hereby agrees, at its cost, (a) to defend Platform Science, and its officers, directors, employees and successors and permitted assigns (each, a "Platform Science Indemnified Party") from and against any third-party claim, action, suit or proceeding (each, a “PS Covered Claim”) arising out of, resulting from or related to (i) any allegation that any use, reproduction or distribution of a RPM Enabled Application or RPM Enabled Application documentation (or, for the avoidance of doubt, any Platform Science Approved Application or any services available therefrom) or Platform Science Extension (or any service available therefrom) or Platform Science Extension documentation infringes, misappropriates or violates any intellectual property rights of any third-parties; (ii) any allegation which, if true, constitutes a breach of Section 3.5 (Limitations and Conditions on Developer’s Use of Customer Data) ; or (iii) any bodily injury, death of any person, or damage to real or tangible personal property caused by Developer Service(s) and (b) to indemnify and hold Platform Science and the Platform Science Indemnified Parties harmless from damages awarded to the third-party bringing the PS Covered Claim in any final judgment, or settle such third-party PS Covered Claim in a manner that releases Platform Science and the other Platform Science Indemnified Parties from any liability and does not cause Platform Science or such other Platform Science Indemnified Parties to admit to any wrongdoing or liability. Developer will not settle any PS Covered Claim, and no settlement of a PS Covered Claim will be binding on Platform Science, without Platform Science’s prior written consent.
13. Export Compliance.
Both Parties agree to strictly comply with all applicable export compliance laws, rules, and regulations.
14. LIABILITY LIMITATIONS.
14.1 EXCEPT FOR A BREACH OF A PARTY’S OBLIGATIONS UNDER SECTION 8 (CONFIDENTIALITY), OR A MISAPPROPRIATION, INFRINGEMENT, OR VIOLATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHER THEORY, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, STATUTORY OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOSS OF DATA, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 OTHER THAN WITH RESPECT TO: (I) A BREACH OF A PARTY’S OBLIGATIONS UNDER SECTIONS 8 (CONFIDENTIALITY), (II) PURSUANT TO SECTION 12 (INDEMNIFICATION), (III) WITH RESPECT TO A MISAPPROPRIATION, INFRINGEMENT, OR VIOLATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (IV) OR A BREACH BY DEVELOPER OF SECTION 3.2 (DEVELOPER END USER LICENSE AGREEMENT FOR CUSTOMER), OR SECTION 3.5 (LIMITATIONS AND CONDITIONS ON DEVELOPER’S USE OF DATA SUPPLIED BY PLATFORM SCIENCE OR THROUGH THE PLATFORM), OR (V) A BREACH BY EITHER PARTY (AS APPLICABLE) OF SECTION 11.1.1 OR SECTION 11.2.1. (NO VIRUSES, ETC.), IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF A PARTY TO THE OTHER PARTY REGARDING ANY AND ALL CLAIMS AND CAUSES OF ACTION, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID AND/OR PAYABLE BY THE PAYING PARTY TO THE OTHER PARTY UNDER THE APPLICABLE PLATFORM SCIENCE PRICING SCHEDULE FOR THE TRAILING SIX MONTH PERIOD PRIOR TO THE DATE SUCH CLAIM FIRST AROSE. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS PARAGRAPH ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
15. General.
15.1 Relationship of Parties. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party. The relationship between Developer and Platform Science created under this Agreement is that of independent contractors. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party without the other's prior written consent.
15.2 Notices. This Agreement is prepared and executed in the English language only and any translations of this Agreement into any other language shall have no effect. All proceedings related to this Agreement shall be conducted in the English language. All notices, consents, waivers, and other communications intended to have legal effect under this Agreement must be in writing and must be in English. Notices sent to Developer by Platform Science will be sent to the e-mail address provided by Developer when Developer was authenticated. Notices sent to Platform Science by Developer should be sent by registered or certified mail, return receipt requested, to Platform Science, Inc., Attn.: Legal Department, 9620 Towne Centre Dr, Suite 100, San Diego, California, 92121. Notice will be effective upon receipt. Each Party may change its address for receipt of notices by giving notice of the new address to the other Party.
15.3 Compliance with Laws. Each Party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement.
15.4 Waiver. The failure of either Party to require performance by the other Party of any provision of this Agreement will not affect the full right to require such performance at any time thereafter; nor will the waiver by either Party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself unless in writing and signed by the Party against whom the waiver is sought.
15.5 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
15.6 Assignment. Neither Party may assign this Agreement or any rights or obligations under this Agreement in whole or in part without the prior written consent of the other Party; provided, however, that either Party may, without such consent, assign this Agreement in whole or in part to: (a) an affiliate (as defined above), provided such affiliate agrees to be bound by all the terms and conditions of this Agreement; or (b) to a successor, whether direct or indirect, to all or substantially all of the business or assets of the assigning Party, whether by purchase, merger, consolidation or otherwise. Any attempted assignment in violation of the preceding sentence will be void. This Agreement will bind and inure to the benefit of the respective successors and permitted assigns of the Parties. Developer may subcontract the development of Developer Service(s) to its consultants and contractors, provided that, Developer shall ensure that each such consultant and contractor complies with all the terms and conditions in this Agreement and Developer will be responsible and liable for any breach of this Agreement by any such consultant or contractor.
15.7 Publicity. Neither Party may publish or otherwise disseminate any news release or other marketing material that references the other Party without such other Party's prior written consent; provided, if Developer has previously consented to the use of their logo or name in past publicity by Platform Science, such consent shall be deemed continuing with respect to similar future publicity.
15.8 Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues, and such Party continues to use commercially reasonable efforts to resume performance.
15.9 Entire Agreement and Amendment. This Agreement, together with any Fee and Data Usage Schedules executed and delivered by the Parties, completely and exclusively states the agreement between Developer and Platform Science, and completely replaces any prior agreements or understandings between the Parties regarding its subject matter. This Agreement may only be amended by a written instrument duly executed and delivered on behalf of both Parties. Any Fee and Data Usage Schedule may only be amended by a written instrument duly executed and delivered on behalf of both Parties. In the event of a direct conflict with the SDK License Agreement, this Marketplace Agreement will control.
15.10 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this Agreement. The Parties agree that any suit, action or proceeding arising from or relating to or in connection with this Agreement will be brought exclusively in the federal or state courts located in San Diego, California and the Parties hereby consent to exclusive personal jurisdiction and venue therein. Notwithstanding this, to the extent that either Party has breached or has indicated its intention to breach this Agreement in any manner that violates the other Party’s intellectual property rights or causes continuing or irreparable harm to the other Party (the “Non-Breaching Party”), the Non-Breaching Party may immediately seek injunctive relief in a court of competent jurisdiction without the posting of a bond, proof of damages or other similar requirement.
16. Survival.
Certain provisions shall, by their nature, survive any expiration or termination of this Agreement, including without limitation those expressly stated to survive as well as Sections 1.3.3. (SDK restrictions), 2.2 (License Restrictions), 3.2 (Developer End User License Agreement for Customer), 3.5 (Limitations and Conditions on Developer’s Use of Customer Data), 5 (Pricing, Billing, and Payment Terms), 6 (Term, Termination, and Wind-Down Period), 8 (Confidentiality), 9 (Intellectual Property Rights), 10 (Non-Exclusivity), 11.3 (Platform Operator Protections), 11.4 (Disclaimer), 12 (Indemnification), 13 (Export Compliance), 14 (Liability Limitations), 15 (General), and 16 (Survival).
3. Platform Science SDK License from Platform Science
4. Use of the Platform Science SDK by Developer
6. Privacy and Information
7. Third Party Applications
8. Using Platform Science APIs
9. Terminating the License Agreement
10. DISCLAIMERS
11. LIMITATION OF LIABILITY
12. Indemnification
13. Changes to the License Agreement
14. General Legal Terms