CURBSIDE SDK EVALUATION LICENSE AGREEMENT
THESE TERMS FORM A BINDING AGREEMENT; PLEASE REVIEW THEM CAREFULLY
CURBSIDE, INC. (“CURBSIDE”) IS WILLING TO PERMIT USE OF THE CURBSIDE SDK AND OTHER SOFTWARE COVERED BY THIS CURBSIDE SDK EVALUATION LICENSE AGREEMENT (THIS “AGREEMENT”) ONLY TO LICENSEES WHO AGREE TO ALL OF THE TERMS CONTAINED HEREIN
ANY PERSON OR ENTITY THAT DESIRES TO OBTAIN AND EVALUATE CURBSIDE’S SOFTWARE (SUCH PERSON OR ENTITY, A “LICENSEE”) MUST AFFIRMATIVELY INDICATE ITS ACCEPTANCE OF THIS LICENSE AGREEMENT IN THE MANNER REQUIRED BY CURBSIDE. BY INDICATING SUCH ACCEPTANCE AND PROCEEDING WITH ANY INSTALLATION AND USE OF CURBSIDE SOFTWARE, LICENSEE IS AGREEING TO ALL OF THE TERMS OF THIS AGREEMENT. CURBSIDE IS NOT WILLING TO PERMIT USE OF ITS SOFTWARE BY ANY PERSON WHO IS UNWILLING OR UNABLE TO AGREE TO ALL OF THESE TERMS; ANY PROSPECTIVE LICENSEE WHO CANNOT OR WILL NOT AGREE TO ALL OF THESE TERMS MUST EXIT OUT OF THE LICENSE REVIEW AND ACCEPTANCE PROCESS IMMEDIATELY, AND MAY NOT CONTINUE WITH ANY USE OF CURBSIDE SOFTWARE COVERED BY THIS AGREEMENT.
ANY PERSON THAT IS INSTALLING THE SOFTWARE ON BEHALF OF SOMEONE ELSE, WHETHER AN EMPLOYER, A CUSTOMER, A CLIENT OR ANY OTHER THIRD PARTY, MUST BE PREPARED TO DEMONSTRATE TO CURBSIDE THAT HE OR SHE IS AUTHORIZED TO ACT ON BEHALF OF AND ACCEPT THIS LICENSE FOR THAT THIRD PARTY AS LICENSEE; PROVIDED, THAT CURBSIDE WILL BE ENTITLED TO ASSUME THAT ANY PERSON ACCEPTING THIS AGREEMENT ON A LICENSEE’S BEHALF IS AUTHORIZED TO DO SO, AND TO BIND THE LICENSEE TO THE TERMS OF THIS AGREEMENT.
- Definitions. In addition to those terms defined above, the following capitalized terms will have the following meanings:
- “API” means application programming interface.
- “Curbside Platform” means Curbside’s proprietary suite of software applications, which includes (but is not necessarily limited to) the Curbside software known as Curbside Shopper App, the Curbside Console, certain Arrival Detection software components, and other software components and web-based services developed by or otherwise proprietary to Curbside. The Curbside Platform enables an app-based shopping and merchandise pickup process at those retailers whose stores are available on the Curbside Shopper App.
- “Effective Date” means the date that this Agreement is accepted by Licensee or on Licensee’s behalf.
- “Feedback” has the meaning given to it in Section 7 below.
- “Licensee App” means any application into which Licensee incorporates the SDK.
- “Licensee Modifications” means any modifications Licensee makes to sample code provided with the SDK.
- “OSS” means open source software.
- “SDK” means Curbside’s software development kit, which is a set of header files, documentation, APIs, sample code and other software libraries and tools, and which allows users to develop applications that can access and use the Curbside Platform.
- “Term” has the meaning given to it in Section 8.1.
- “Usage Data” means information, analytics, and data that Curbside collects in connection with Licensee’s use of any Licensee App that incorporates any part of the SDK.
- The SDK.
- License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Curbside grants Licensee a limited, non-exclusive, non-transferable, and non-sublicensable license during the Term of this Agreement to: (a) use the object code libraries, APIs, and documentation specified in the SDK solely for Licensee’s internal, non-commercial use and solely to evaluate how Licensee Apps access, interact with and otherwise use the Curbside Platform; and (b) modify any sample code included within the SDK solely as necessary to enable Licensee Apps to accesses, interact with and otherwise use the Curbside Platform solely for purposes of evaluating Licensee Apps and their use of the Curbside Platform.
- Restrictions. Licensee will not: (a) modify or delete any copyright, trademark, or other proprietary notices of Curbside or its licensors that are included in or generated by the SDK; (b) reverse engineer, decompile, disassemble, or otherwise tamper with or seek to discover any source code included in the SDK (except and only to the extent that any such restrictions are prohibited by applicable law); or (c) modify any of the object code libraries or APIs included with or specified in the SDK. Licensee may not use Curbside APIs other than pursuant to this Agreement and as documented in the SDK.
- IP Rights. This Agreement does not: (a) provide Licensee with any right or license (whether expressly, by implication, by estoppel, or otherwise) under any of Curbside’s intellectual property rights other than to use the SDK during the Term solely in the manner and solely to the extent authorized in Section 2.1; or (b) impair the right of Curbside to develop, make, use, procure, protect, market and/or exploit any products or services. Curbside reserves all rights not expressly granted to Licensee. In consideration for the rights granted hereunder, Licensee will not assert or authorize, assist, or encourage any third party to assert any intellectual property infringement claim against Curbside or any of its affiliates, customers, or licensees regarding any portions of the SDK or any features or functions enabled by the SDK.
- Modifications to the SDK. Except for sample code provided with the SDK, Licensee may not make any modifications to the SDK. As between Licensee and Curbside, and subject to Curbside’s ownership of the SDK, Licensee will own any Licensee Modifications; provided, that Licensee may only use Licensee Modifications as part of a Licensee App and solely for Licensee’s internal, non-commercial use in connection with Licensee’s evaluation of how such Licensee App accesses, interacts with and otherwise uses the Curbside Platform. Licensee will provide all Licensee Modifications to Curbside and Licensee hereby grants Curbside a perpetual, irrevocable, non-exclusive, royalty-free, and worldwide license to use, reproduce, create derivative works from, distribute, publicly display, publicly perform, make, have made, offer for sale, sell or otherwise dispose of, import, and otherwise commercialize the Licensee Modifications in connection with Curbside’s products and services, with the right to sublicense each and every right.
- Changes. Curbside reserves the right, at any time and without liability, to change the features and functionality of the SDK and the Curbside Platform. Such changes might include, without limitation, disabling APIs or limiting API calls. Curbside will use commercially reasonable efforts to provide Licensee with prior notice of any such changes made during the Term hereof. If Licensee does not agree to the changes, Licensee’s sole course of action will be to stop using the SDK and terminate this Agreement.
- Usage Data. Curbside will own and retain all right, title, and interest in the Usage Data. Licensee acknowledges and agrees that Curbside may collect any Usage Data produced by or resulting from any Licensee App, and that Curbside may use such Usage Data in an aggregated and anonymized manner for any purpose.
- SDK Development and Distribution.
- Guidelines. Licensee’s use of the SDK and of any Licensee App must:
- comply with any guidelines set forth in the documentation included with or referenced in the SDK, as updated from time to time;
- comply with any and all applicable laws, rules, or regulations;
- not result in any modification or damage to, or deletion or disabling of the Curbside Platform or any other Curbside software or services; and
- not disrupt, interfere with, or access in an unauthorized manner the Curbside Platform or any Curbside software or servers.
- Access. Curbside may, in its reasonable discretion and without prior notice to Licensee, suspend Licensee’s use of the SDK and access to the Curbside Platform at any time if Curbside believes that (a) Licensee is in breach of any obligations under this Agreement; (b) the Licensee App or Licensee’s use of the SDK poses a security risk; (c) there is a bug or performance issue with the Licensee App or Licensee’s use of the SDK; (d) the Licensee App or Licensee’s use of the SDK violates, misappropriates, or infringes the rights of Curbside or a third party; or (e) the Licensee App or Licensee’s use of the SDK imposes unexpected or excessive demands on the Curbside Platform. Upon any such suspension, Licensee and Curbside will cooperate in good faith to identify the cause of the issue giving rise to the suspension, and without limiting any of Curbside’s other rights, no suspension will be lifted until Licensee can demonstrate to Curbside’s reasonable satisfaction that Licensee has removed or otherwise remedied the issue or issues giving rise to the suspension.
- Fees. Subject to Licensee complying with the terms and conditions of this Agreement, the SDK will be provided to Licensee at no additional cost for the Term hereof; provided, however, that Curbside reserves the right to institute a fee for the use of the SDK, and Curbside will provide Licensee with prior written notice of any such fee that is instituted during the Term.
- Open Source.
- Licensee’s Use of Open Source. Licensee will:
- comply with all applicable OSS licensing terms and obligations (including any notice and attribution requirements) relevant to the Licensee App or any access and use of the Curbside Platform by Licensee, and cooperate with all reasonable requests by Curbside to verify such compliance;
- not use any OSS in any Licensee App in such a way that would (i) cause any Curbside software (including the SDK) to be subject to any OSS licensing terms or obligations, or (ii) purport to require Curbside (or its agents) to disclose or make available any of the keys, authorization codes, methods, procedures, data or other information related to Curbside technology; and
- not use in any Licensee Apps any OSS that is licensed under the GPLv3, LGPLv3, Affero GPLv3, or Sleepycat OSS licenses.
- Feedback. Licensee may, but is not obligated to, provide Curbside any feedback, comments, or suggestions (collectively, “Feedback”). Licensee understands and agrees that: (i) any Feedback will be provided on a non-confidential basis; (ii) Curbside will have no obligation to review, consider, or implement any Feedback that Licensee provides; and (iii) Curbside and its successors and assigns will have, Licensee irrevocably grants and agrees to grant to Curbside and its successors and assigns, perpetual and unlimited permission to use, reproduce, modify, distribute, display, and perform any Feedback and any derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback, whether in whole or in part, and whether as provided by Licensee or as subsequently modified by Curbside or by any third party.
- Term and Termination.
- Term. The term of this Agreement will commence upon the Effective Date and continue for a period of 45 days (the “Term”).
- Termination. Either party may terminate this Agreement at any time by sending written notice to the other party.
- Effects of Termination. Upon termination of this Agreement: (i) Curbside may immediately disable Licensee’s use of the SDK; and (ii) Licensee will immediately cease using the SDK (including any Licensee App or feature or portion thereof that uses or otherwise depends on the SDK) and delete all copies it has in its possession or under its control. This section and Sections 2.2 - 2.4, 3, 6-13 will survive termination of this Agreement.
- Confidentiality; Publicity. The parties have previously executed, and will continue to be bound by, a nondisclosure agreement that governs all confidential and proprietary information that they exchange, and Licensee understands and agrees that the contents of the SDK, together with the terms and conditions of this Agreement, constitute the confidential information of Curbside. In addition, neither party will issue any press release or make any public statements about this Agreement or the relationship of the parties hereunder without the prior written approval of the other party.
- Disclaimer of Warranties. CURBSIDE IS PROVIDING LICENSEE WITH THE SDK AND ACCESS TO THE CURBSIDE PLATFORM “AS IS” WITHOUT WARRANTIES OF ANY KIND, AND LICENSEE’S USE OF THE SDK AND THE CURBSIDE PLATFORM IS AT LICENSEE’S SOLE RISK. TO THE GREATEST EXTENT PERMITTED BY LAW, CURBSIDE AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. CURBSIDE WILL NOT BE LIABLE TO LICENSEE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF CURBSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT WILL CURBSIDE’S LIABILITY TO LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $500.00.
- Indemnification. Licensee will indemnify, defend, and hold harmless Curbside and its officers, directors, employees, and agents from and against any and all third-party claims, demands, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to: (a) Licensee’s use of the SDK and the Curbside Platform; (b) any development or use of a Licensee App; and (c) Licensee’s breach of this Agreement (including, without limitation, any failure by any of Licensee’s affiliates to comply with any of the terms and conditions of this Agreement). Curbside will use commercially reasonable efforts to provide Licensee with prompt notification of any claim for which Curbside seeks an indemnity, but Curbside’s failure to provide such notice will not limit Licensee’s obligation to indemnify Curbside except to the extent that Licensee has been materially harmed by such failure to provide prompt notice. Curbside will cooperate in Licensee’s defense of any claim, at Licensee’s sole expense. Licensee may not settle any claim against Curbside in a manner that adversely affects Curbside without Curbside’s prior written consent, which consent will not be unreasonably withheld. Curbside may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if Licensee is unwilling, or if Curbside reasonably determines that Licensee is unable to defend the interests of Curbside, then Curbside may assume the defense against any claims at Licensee’s expense. Curbside will not settle any claim for which Licensee is obligated to indemnify Curbside without Licensee’s prior written consent, which consent will not be unreasonably withheld or delayed.
- General Legal Terms.
- Assignments. Licensee may not assign or transfer this Agreement (or any of Licensee’s rights or obligations under this Agreement) (a) without Curbside’s prior written consent, and (b) where consent has been granted, by ensuring that any assignee or transferee agrees to be bound by this Agreement in the same manner as Licensee (including with respect to any intellectual property rights). Any attempted assignment or transfer without complying with the preceding sentence will be void. Curbside may freely assign or transfer this Agreement. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and permitted assigns.
- Entire Agreement; Amendments. This Agreement supersedes all prior discussions and writings regarding and constitutes the entire agreement between the parties with respect to Licensee’s use of the SDK for evaluation purposes. The parties may only amend this Agreement in a writing executed by both parties. No employee, agent, or other representative of Curbside has any authority to bind Curbside with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.
- Export. Licensee will not (whether directly or indirectly) export or re-export all or any part of the SDK to: (a) any countries that are subject to US export restrictions (such as, by way of example and not limitation, Cuba, Iran, North Korea, Sudan, and Syria); (b) any third party who Licensees knows or reasonably should know will utilize the SDK for prohibited end uses (such as, by way of example and not limitation, for the design, development or production of nuclear, chemical or biological weapons); or (c) any third party who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government (such as someone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List).
- Governing Law and Venue. This Agreement is to be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. Licensee and Curbside: (a) will bring any disputes arising out of or related to this Agreement exclusively in a state or federal court located in Santa Clara County, California; and (b) hereby irrevocably submit to the exclusive personal jurisdiction of such courts.
- Irreparable Harm. Licensee agrees that any actual or threatened breach of this Agreement by Licensee would cause immediate and irreparable harm to Curbside, the value of which would be difficult or impossible to determine and for which monetary damages would be inadequate compensation. Accordingly, in addition to any other remedies, Curbside will be entitled to obtain injunctive relief or specific performance from any court of competent jurisdiction to prevent any such breaches and Licensee expressly waives: (a) the defense that monetary damages would be adequate compensation for Curbside; (b) the defense that the harm to Licensee and/or to others would outweigh the harm to Curbside; and (c) any requirement that Curbside post a bond or other security.
- Notices. To be valid, all notices permitted or required under this Agreement must be sent in writing, via certified mail, by a party to the other party at the address set forth in the preamble. Notices will be deemed given on receipt by the applicable party.
- Relationship. This Agreement does not confer any third party beneficiary rights and does not create a joint venture, agency, partnership, or other form of joint enterprise between the parties. Except as expressly provided herein, neither party has the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. There are no intended third party beneficiaries of this Agreement.
- Severability, Waiver, and Interpretation. If any provision of this Agreement is found to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. No waiver of any breach of this Agreement will constitute a waiver of any other breach. In construing or interpreting the terms of this Agreement: (a) the headings in this Agreement are for convenience only, and are not to be considered, and (b) no presumption is to operate in either party’s favor as a result of its counsel’s role in drafting this Agreement.
- Counterparts. This Agreement may be executed in any number of identical counterparts, each of which will be deemed an original and all of which will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
BY TAKING ANY REQUIRED ACTION TO INDICATE ACCEPTANCE OF THIS AGREEMENT, LICENSEE (OR LICENSEE’S REPRESENTATIVE) IS ACKNOWLEDGING ITS UNDERSTANDING OF THIS AGREEMENT, AND THAT LICENSEE WILL BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.