Software License Agreement
JoyMonster, Inc.
SOFTWARE LICENSE AGREEMENT
Thank you for your interest in JoyMoster, Inc. ("JoyMonster"), and its real time in-game advertising software platform and associated services (the "Service"), and related software and services, consisting of the documentation ("Documentation"), redistributable libraries ("Libraries"), software and related code accessed by you through the JoyMonster API, and other materials provided to you directly in the applicable SOFTWARE download or API access, and any upgrades, modified versions, additions, and improvements therefor, if any (collectively, the "SOFTWARE") designed to enable software developer’s games and applications to present third party offers and advertisements in an in-game environment using the JoyMonster platform and services.
This Software License Agreement (the "Agreement") governs use of the Software and Service by you, and/or the entity on whose behalf you are downloading the Software ("you"). BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SOFTWARE AND SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SOFTWARE OR SERVICE. Accordingly, you and JoyMonster acknowledge and agree as follows:
1. LIMITED LICENSE. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this Agreement, including without limitation all license limitations and restrictions set forth herein, JoyMonster grants you the following limited, non-exclusive, non-transferable, non-sublicensable, revocable licenses to:
a. use, and (where applicable) authorize your employees to use, the SOFTWARE, and Documentation internally solely in connection with developing your own branded games that interoperate with the Service ("Applications");
b. incorporate unmodified Libraries into your Application, solely for the purpose of enabling interoperability with the Service, solely in accordance with all applicable Documentation and applicable terms, and subject to you obtaining and maintaining an API key from JoyMonster, to distribute Libraries so incorporated in your compliant Application to end users in executable form (except and solely to the extent that the Libraries are written in a language that is traditionally delivered for runtime interpretation in source code form) solely within your Applications; and
c. access and use the Service for the purpose of presenting third party offers or advertisements within your game or application.
2. RESTRICTIONS. By accessing or using the SOFTWARE, you represent, warrant, and covenant that (a) you are a person or business entity engaged in the development of software applications for online or mobile games, and (b) in the case of a business entity, you have the full power and authority to bind such entity to the terms of this Agreement. References to "you" herein shall refer to you, and/or the entity on whose behalf you are using the SOFTWARE, and all individual users of the SOFTWARE on behalf of such entity. You acknowledge that the foregoing license does not include any right to (i) redistribute, sell, lease, license, or modify any portion of the SOFTWARE in a standalone manner, or (ii) use or implement any undocumented feature or API, or use any documented feature or API other than in accordance with applicable documentation. You may not reproduce, distribute, publicly display, or publicly perform any part of the SOFTWARE, except as provided herein. Except if, and solely to the extent that, such a restriction is not authorized herein, or impermissible under applicable law or applicable Third Party Software (defined below) license terms, you may not (y) decompile, reverse engineer, or otherwise access or attempt to access the source code for the SOFTWARE not made available to you in source code form, or make or attempt to make any modification to the SOFTWARE; or (z) remove, obscure, interfere with or circumvent any feature of the SOFTWARE, including without limitation any copyright or other intellectual property notices, security, or access control mechanism. You may not use the SOFTWARE for any purpose other than interoperating with the Service in a manner for which the SOFTWARE and Service are expressly designed. If you are prohibited under applicable law from using the SOFTWARE, you may not use them, and you will comply with all applicable laws and regulations (including without limitation laws and regulations related to export controls) in connection with your use of the SOFTWARE. Without limiting the generality of the foregoing, you represent and warrant that the SOFTWARE will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the SOFTWARE is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Crimea, Cuba, Iran, North Korea, Sudan, or Syria and that you are not otherwise prohibited under the Export Laws from receiving the SOFTWARE. You may not use the SOFTWARE for any purpose, or use the SOFTWARE in the development of any Application that is for the purpose of lifesaving, emergency response, or otherwise for deployment in any circumstance in which failure would be likely to lead to property damage, environmental damage, personal injury, or death. ANY USE IN VIOLATION OF THE FOREGOING LIMITATIONS AND RESTRICTIONS IS STRICTLY PROHIBITED, AND UNLICENSED.
You hereby agree and are required to refrain from illegal acts and acts which are offensive to others, and to respect all property rights of the users of the SOFTWARE in your game or other authorized application, as well as other content providers and authors. Offensive or inappropriate behavior, violation of copyrights, illegal activity or use of indecent language may cause JoyMonster, at its sole and absolute discretion, to suspend or deny you access or further use of the SOFTWARE or Services.
If you violate this Agreement, we may issue you a warning about the violation, or we may choose to immediately terminate any and all accounts that you have established. By accepting this Agreement you acknowledge that JoyMonster is not required to provide you notice before terminating your account, but it may choose to do so.
You may not engage in any activities through your game or other application that utilizes the SOFTWARE or Services which are unlawful, offensive, abusive, violate the rights of third parties. You agree to indemnify, defend and hold harmless JoyMonster and its subsidiaries, affiliates, officers, managers, members and employees from any damages, liabilities and expenses (including actual attorneys' fees, costs and expenses) arising from any third party claims resulting from, or arising out of, your use of the SOFTWARE and Services in your game or other application. We reserve the right to terminate your access to the SOFTWARE and Services at any time, without notice, for any reason or no reason whatsoever.
3. RESERVATION OF RIGHTS. The SOFTWARE is owned by JoyMonster and licensed, not sold, to you. The SOFTWARE, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the SOFTWARE and related documentation (the "JoyMonster Materials"), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and JoyMonster, all JoyMonster Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of JoyMonster or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the JoyMonster Materials except as expressly authorized hereunder. JoyMonster reserves all rights not expressly granted in this Agreement. You do not acquire any right, title or interest to the JoyMonster Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement.
4. CONFIDENTIALITY. The SOFTWARE (including as embodied in or utilized by any Application) is the confidential and proprietary information of JoyMonster, and you may not, during the term or thereafter, disclose them to any third party, or to use them for any purpose other than as expressly provided herein, without a separate written agreement with JoyMonster authorizing you to do so.
5. FEEDBACK. If you provide JoyMonster with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by you for the SOFTWARE or the Service ("Feedback"), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and JoyMonster shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the JoyMonster Materials, SOFTWARE or Service. You hereby grant JoyMonster a perpetual, irrevocable, transferable, sublicensable, royalty-free, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose, including to make and sell products and services.
You acknowledge that JoyMonster is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that You may develop based on your license herein. Nothing in this Agreement shall impair, limit or curtail JoyMonster's right to continue with its development, maintenance and/or distribution of JoyMonster's technology or products. You agree that you shall not assert in any way any patent owned by You arising out of or in connection with this SOFTWARE or modifications made thereto against JoyMonster, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors (collectively, the "JoyMonster Product Users") for the manufacture, use, import, licensing, offer for sale or sale of any JoyMonster products.
6. THIRD PARTY SOFTWARE. The SOFTWARE consists of a package of components, including certain third party software or content ("Third Party Software") that are provided by their authors under separate license terms (the "Third Party Terms"), as described in more detail in the SOFTWARE, and online at https://JoyMonster.com/licenses. Your use of the Third Party Software in conjunction with the SOFTWARE in a manner consistent with this Agreement is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software.
7. END USER INFORMATION. You acknowledge and agree that the Services will be active within your Application for the purpose of presenting and redeeming offers or advertisements from third party advertisers. You acknowledge and agree that Your end user license agreement (“EULA”) will disclose and authorize the use of third party software for the purpose of displaying offers and advertisements from third parties. Your EULA shall contain all necessary and applicable rights and permissions for the collection and use of both personally identifiable information (“PII”) and other non-PII information from the end user including but not limited to the use, distribution, sale, and transfer of said end user information by JoyMonster for the purposes of providing the Services and in the normal course of business. You agree not to block or limit JoyMonster’s access to end user information within Your Application. You agree that your EULA will provide for the right and access to end users Wallet or other repository for JoyMonster generated offers for the purpose of granting, maintaining, and revoking any such JoyMonster generated offers. You agree to use commercially reasonable efforts to maintain and update Your EULA to fully comply with all applicable laws and regulations regarding the use and distribution of end user information. You will supply a copy of the most recent version of Your ELUA to JoyMonster to confirm compliance with this Agreement.
8. TERM AND TERMINATION. This Agreement will remain in effect until terminated. The Agreement, and your rights and licenses hereunder, will terminate immediately upon your breach of the Agreement. You may terminate the Agreement by uninstalling and ceasing all use of the SOFTWARE. JoyMonster may terminate this Agreement at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the SOFTWARE or any violation of this Agreement. Following any termination of this Agreement, you must immediately uninstall and cease use of the SOFTWARE, and destroy all copies. Sections 2, 3, 4, 5, 6, 7, 8, 8, 9, 10, 11, and 12 shall survive any termination of this Agreement.
9. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. THE SOFTWARE AND ALL ASSOCIATED DOCUMENTATION, LIBRARIES, AND SAMPLE CODE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JOYMONSTER DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, RESULTS, AND NON-INFRINGEMENT. JOYMONSTER EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF THE SOFTWARE, AND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SOFTWARE, OR THE QUALITY OR CONSISTENCY OF THE SOFTWARE OR RESULTS OBTAINED THROUGH ITS USE. UNDER NO CIRCUMSTANCES WILL JOYMONSTER BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF JOYMONSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL JOYMONSTER'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT OR THE TERMS EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE SOFTWARE, IF ANY, OR $50USD. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS AND EXCLUSIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
JoyMonster is under no obligation to provide any support under this Agreement, including upgrades or future versions of the SOFTWARE or any portions thereof, to You, end user or to any other party.
10. INDEMNITY. You agree to indemnify, defend and hold JoyMonster and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys' fees and expert fees incurred by such parties, in connection with or arising out of your Applications, your use or misuse of the SOFTWARE, or your violation of this Agreement, any applicable law or regulation.
11. GOVERNING LAW; VENUE. Any claim relating to the SOFTWARE or Service shall be governed by the laws of California, without regard to conflict of laws provisions. Disputes arising under this shall be resolved in, and subject to the sole and exclusive jurisdiction of the state and federal courts located in the Northern District of California.
12. MISCELLANEOUS. This Agreement is the entire agreement between you and JoyMonster, and supersedes any and all prior agreements, negotiations, or other communications between you and JoyMonster, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties. In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. You may not assign this Agreement without the prior written consent of JoyMonster, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. JoyMonster may assign this Agreement without restriction and without any notice to you. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns. You acknowledge and understand that if JoyMonster is unable to provide the SOFTWARE as a result of a force majeure event JoyMonster will not be in breach of this Agreement. A force majeure event means any event beyond the control of JoyMonster. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. JoyMonster's waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement. The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience. The SOFTWARE is a "Commercial Item" as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation." If and to the extent the SOFTWARE is supplied to or purchased by or on behalf of a United States government entity or an entity licensing the SOFTWARE for or on behalf of a United States government entity, the SOFTWARE is licensed (a) only as a Commercial Item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this agreement.
Last updated: June 1, 2019