LICENSE

Enterprise License Terms

These Enterprise License Terms (these “Terms”) govern Customer’s use of the SDK pursuant to a Makemoji SDK Order Form executed by each of Customer and Emoticon (the “Order Form”). Capitalized terms not defined in these Terms have the meaning given in the Order Form.

DEFINITIONS. 

“Documentation” means the user manuals and documentation for the SDK or API, as applicable, provided or made available by Emoticon.

“SDK” means the Makemoji software development kit, and components together with the related Documentation.

“API” means the Makemoji application programming interface, and components together with the related user manuals and documentation provided or made available by Emoticon (“Documentation”). 

“Applications” means the Applications identified in the Order Form.

LICENSE FOR LIMITED USE. Subject to the terms and conditions of this Agreement, Emoticon hereby grants to Customer during the Term a limited, non-exclusive, non-transferable, non- assignable, non-sublicensable right and license to access and use the SDK or API solely in connection with the Applications. For clarity, Customer shall have the right to market, promote and distribute Applications through one or more third parties subject to the terms of this Agreement.

RESTRICTIONS. Customer shall not (a) rent, lease, loan, assign, sublicense, lend, transfer, share, sell, resell, or distribute the SDK or API to any third-party or use the SDK or API on behalf of any third- party (other than as part of the Applications); (b) copy the SDK or API, in whole or in part, except that Customer may make a reasonable number of copies of the Documentation for backup purposes only; (c) modify, obscure, or delete any proprietary rights notices included in or on the SDK or API or Documentation (and Customer agrees to include all such notices on all copies); (d) modify the SDK or API, make derivative works or merge the SDK or API into any other programs; and (e) reverse engineer, disassemble or decompile the SDK or API, in whole or in part.

OWNERSHIP. 

SDK and API. Customer acknowledge that, as between Customer and Emoticon, title and full ownership in and to the SDK and API and all trade secrets, copyrights and patent rights and all other intellectual property and proprietary rights in and to the SDK and API remain with Emoticon, whether or not any portion thereof is or may be validly copyrighted or patented. Customer is granted the limited license rights to access, use copy and display the SDK
and API as described in this Agreement. Customer agrees to treat
the SDK and API as Emoticon's proprietary information. Customer will take all reasonable steps to protect the API from disclosure to or use by any unauthorized third-party.

Data. As between the parties, each party shall own all rights in and to all user information collected by it in connection with the Applications (“Application Data”). For clarity, Emoticon does not collect personally identifiable information from end users. If Customer agrees to implement branded emojis and receive a Revenue Share as specified in the Order Form, (i) Customer agrees to provide, to the extent available to Customer, the following information: age, gender, geo-location and such other information as Emoticon may request, other than personally identifiable information (collectively, “Demographic Information”) and (ii) Customer acknowledges that the content of messages in which the branded emoji is included by End Users may be collected and shared by Emoticon with the applicable brand advertiser. Demographic Information will be provided according to Emoticon’s reasonable specifications and may be associated with an anonymous user ID. Except as provided here, Emoticon does not collect or monitor the content of messages.

TERM AND TERMINATION. 

Termination. Either party may terminate this Agreement in the event of a material breach by the other party that is not cured within 15 days of written notice describing such breach. Notwithstanding the foregoing, Emoticon may terminate this Agreement immediately upon notice to Customer of Emoticon’s reasonable determination that Customer is using the SDK or API in such a manner that could damage or cause injury to the SDK or API.

Suspension. Emoticon, in its sole discretion, may suspend Customer’s (or, if applicable, an end user’s) access to the SDK or API in the event that Emoticon reasonably believes that Customer or a third-party accessing the SDK or API through Customer’s Applications is engaged in (i) denial of service attacks, spamming, or any activity that may harm Emoticon, its systems or any third-party systems; or (ii) any fraudulent or illegal activity or any activity that could result in legal liability to Emoticon or any third-party. Any such suspension may continue until the event causing such suspension has been cured or until Emoticon has received satisfactory assurances that such event will not recur.

Effect of Termination. Upon termination of this Agreement for any reason, Customer will immediately stop using, and either return to Emoticon, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the SDK and API and any Confidential Information (as defined in Section 9) in Customer’s possession, and shall certify to Emoticon that such actions have occurred. Those provisions of this Agreement that contemplate a continuing obligation shall survive the termination or expiration of this Agreement and remain in full force and effect, including, but not limited to, the Sections titled “Representations    and    Warranties”,    “Indemnification”,     and
“Confidentiality”. Except in the event that this Agreement is terminated or suspended by Emoticon under Section 5, and to the extent that Applications created hereunder prior to the termination of this Agreement continue to be accessed and used by end users beyond the termination of this Agreement, the applicable terms of this Agreement shall remain in full force and effect in connection with and for the duration of such access and use.

AUDIT. During the Term and for a period of one year after, Emoticon may audit Customer’s compliance with the provisions of this Agreement. The audit will be conducted at Emoticon’s expense; provided that if the audit reveals material noncompliance with this Agreement, Customer will, without limiting Emoticon’s other remedies, reimburse Emoticon its reasonable costs of audit The audit must be conducted at a mutually agreed upon time during normal business hours. The auditors may review, and Customer will make available, those records that are reasonably necessary to determine Customer’s compliance with its obligations under this Agreement. Prior to an audit, the auditing party will obtain from the auditor a signed confidentiality agreement reasonably acceptable to the audited party, and the results of the audit and all information reviewed during such audit will be deemed confidential.

SUPPORT; SOURCE CODE ESCROW.

Emoticon Support. During the Term, Emoticon will provide such maintenance services for the SDK and API as may be specified in the Order Form.

Application Support. During the Term, Customer shall provide support and maintenance services for the Applications, including first line customer support for the Emoticon functionality incorporated in the Applications. Customer shall regularly update the Applications such that, at a minimum, it includes the latest version of the SDK and API as made available by Emoticon to Customer.

Source Code Escrow. Emoticon maintains in escrow a fully commented and documented copy of the source code form of the SDK (the “Deposit Materials”), pursuant to an escrow agreement with its escrow agent, National Software Escrow, Inc. (the “Escrow Agreement”). If Customer elects to become a beneficiary to such Escrow Agreement, it shall complete the applicable registration form and pay all applicable beneficiary fees and other charges to the escrow agent in accordance with the terms of the Escrow Agreement. Emoticon reserves the right to select a new escrow agent at any time upon at least 60 days’ notice to Customer, in which event, Customer shall have the option to become a beneficiary under the new escrow agreement.

REPRESENTATIONS AND WARRANTIES.

Customer represents, warrants, and covenants that (i) it has the right, power and authority to enter into this Agreement; (ii) it shall implement and maintain security measures consistent with applicable laws, rules and regulations and industry to prevent unauthorized access to or disclosure of the SDK or API, any Confidential Information, and other information related to Customer’s use of the SDK or API; (iii) the Applications will comply with  all  applicable  laws,  rules  and  regulations;  and  (iv)     the
Applications and any and all materials provided by Customer pursuant to this Agreement, shall not infringe or violate any third- party rights, including intellectual property rights and rights of privacy or publicity.

DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SDK AND API IS OFFERED “AS IS,” AND EMOTICON GRANTS CUSTOMER AND CUSTOMER RECEIVES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR OTHERWISE. EMOTICON SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EMOTICON DOES NOT WARRANT THAT THE OPERATION OF THE SDK OR API WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, SOFTWARE OR HARDWARE, OR THAT IT WILL NOT CAUSE ANY LOSS OR CORRUPTION  OF DATA.

LIMITATION OF LIABILITY.

NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR CONTENT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

LIMITATION OF DAMAGES. EMOTICON’S CUMULATIVE, AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY DAMAGES UNDER AISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED $10,000.00.

EXCEPTIONS. The foregoing exclusions and limitations of liability will not apply to (a) a breach by a party of its confidentiality obligations; (b) a breach by a party of its indemnification obligations or any amounts paid or payable in connection with such obligations; or (c) a party’s gross negligence or willful misconduct.

INDEMNIFICATION.

By Emoticon. Emoticon agrees to defend and hold Customer harmless from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon Customer in connection with any third-party claim, action or proceeding (a “Claim”) arising from or in connection with any allegation that the SDK or API as made available to Customer by Emoticon infringes any patent, copyright or trademark or misappropriates any trade secret.

By Customer. Customer agrees to indemnify, defend and hold Emoticon harmless from and against any Losses”) incurred by or imposed upon Emoticon in connection with any Claim arising from or in connection with (i) the Applications; (ii) a breach by Customer of any of its representations, warranties, or covenants hereunder; (iii) its gross negligence or willful misconduct; or (iv) the collection, processing, storage, use, transmission or destruction of
any of Emoticon’s Confidential Information.
Process. Customer or the Emoticon requesting indemnification hereunder (the “Indemnified Party”) will (i) provide the party providing indemnification hereunder (the “Indemnifying Party”) with prompt notice of any such Claim (provided, however, that failure to do so shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice to the Indemnifying Party as a direct result of such failure); (ii) permit the Indemnifying Party to assume and control the defense of such action upon the Indemnifying Party’s written notice to the Indemnified Party of its intention to indemnify; and (iii) upon the Indemnifying Party’s written request, provide to the Indemnifying Party all available information and assistance reasonably necessary for the Indemnifying Party to defend such Claim. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense and settlement of any such Claim with counsel of its choice. Notwithstanding the foregoing, Emoticon shall have no obligation to indemnify Customer to the extent that any Claim arises from (a) Customer’s use of the SDK or API in contravention of these Terms or the Documentation; (b) the combination or use of the SDK or API with any other services, technology, content or material that were not provided by Emoticon; (c) modification of the SDK or API; or
(d) Customer’s use of the SDK or API after Customer reasonably could have implemented a non-infringing alternative pursuant to Section 10(D)(ii) or (iii).

Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event  that Emoticon, in its sole discretion, reasonably determines, that the SDK or API, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party intellectual property right, Emoticon shall, as Customer’s sole and exclusive remedy (but without limitation of Emoticon’s obligations under Section 10(A)), and at Emoticon’s sole discretion, either: (i) obtain a license, at reasonable cost, for Customer to continue using the SDK or API, or portion thereof; (ii) modify the SDK or API while retaining substantively equivalent functionality; (iii) replace the affected SDK or API with functionally equivalent software or services; or (iv) terminate this license in whole or in part (in which event, Customer shall immediately terminate use thereof and the provisions of Section 5 will apply)

CONFIDENTIALITY. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, the SDK and API, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute the Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Receiving Party
will use at least the same level of care to maintain the Confidential Information of the Disclosing Party as it uses to maintain the confidentiality of its own non-public information and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the Disclosing Party all of Disclosing Party’s Confidential Information or to certify to the Disclosing Party in writing that all such material has been destroyed.

PROMOTION. During the Term, Customer agrees to include the name of Emoticon on Customer’s website for promotional purposes.

GOVERNING LAW; VENUE AND JURISDICTION. This Agreement is to be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Transactions Act shall not apply to this Agreement. Any action or proceeding arising out of or relating to this Agreement shall be resolved exclusively by arbitration in the County of Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

ASSIGNMENT. Customer may not assign this Agreement without Emoticon’s prior consent.
SEVERABILITY. Each provision of this Agreement shall be viewed as separate and distinct, and in the event that any provision shall be deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, the court finding such illegality, invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of this Agreement shall continue in full force and effect.

NOTICES. All notices provided hereunder shall be in writing, delivered personally, sent by facsimile, or sent by overnight courier, registered or certified mail to the numbers or addresses set forth in the Order Form, or such other address as may be specified in writing by notice given in accordance with this Section. All such notices shall be deemed to have been given: (i) upon receipt when delivered personally, (ii) on the date delivered when delivered by facsimile, or (ii) upon verification of receipt via overnight courier, registered or certified mail.

WAIVER. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described herein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

FORCE MAJEURE. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or services as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure and power failures. Nothing in the foregoing shall be deemed to relieve Customer of its obligation to pay any and all fees owed to Emoticon under this Agreement.

NO JOINT VENTURE. Nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Emoticon and Customer.

ENTIRE AGREEMENT. This Agreement is intended by the parties as the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. This Agreement may only be modified or amended pursuant to a written agreement or instrument signed by each party.

HEADINGS; COUNTERPARTS. Headings are for convenience only and are not deemed to be part of this Agreement.