Last Updated: April 1, 2021
PLEASE READ THESE THIS SDK LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE FOURSQUARE SDK THAT IS OFFERED BY FOURSQUARE LABS, INC. ("FOURSQUARE"). THIS AGREEMENT IS MADE AND ENTERED INTO BY AND BETWEEN FOURSQUARE AND THE ENTITY OR PERSON AGREEING TO THESE TERMS (“LICENSEE”).
This Agreement is effective as of the date Licensee downloads the SDK. If you are accepting on behalf of Licensee, you represent and warrant that (i) you have full legal authority to bind Licensee to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Licensee, to this Agreement.
- License. Subject to full compliance with the terms of this Agreement, Foursquare hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to (i) download and use Foursquare’s Software Development Kit (“SDK”) solely to allow Licensee to copy, install, use and integrate the SDK in object code form only into Licensee’s application (the “App”) to communicate with Foursquare’s proprietary services (the “Service”) and to access content, documentation, code, data and related materials (the “Content”), (the SDK, Service, and Content, collectively, the “Foursquare Materials”)(ii) distribute the SDK in object code form only as part of an App, and (iii) use, reproduce, distribute, transmit, display and perform the Content as part of the App; provided that distribution of the Foursquare Materials shall be subject to an end-user license agreement which is at least as protective of Foursquare’s proprietary rights in the Foursquare Materials as those contained in this Agreement. Without limiting the foregoing, such terms and conditions shall include, without limitation terms for Foursquare’s benefit regarding (a) restrictions on reverse engineering (to the maximum extent permitted by applicable law); (b) disclaimer of warranties; and (c) limitation of liability.
- Restrictions. Except as set forth in Section 1, no other right or license is granted to Licensee regarding the SDK, the Service or Content. Except in connection with Licensee’s limited right to distribute the SDK in object code form in accordance with Section 1(ii), Licensee will not disclose (or allow access to) the SDK (or any information derived from them) to any third party and will limit access to the SDK (and any derived information) to employees of Licensee who are developing the App. In support of this obligation, Licensee will implement and maintain industry standard administrative, technical and organizational security. Licensee will not (i) reverse assemble, reverse compile or reverse engineer any aspect of the SDK, or otherwise attempt to discover any SDK source code or underlying Proprietary Information (as that term is defined below), or authorize or encourage anyone else to do so (except to the extent such restriction is prohibited by applicable law), (ii) store or cache any Content after termination or expiration of this Agreement, (iv) interfere with, circumvent, modify, disrupt or disable features or functionality, including without limitation any such mechanism used to restrict or control the functionality of any Foursquare service, (v) use the Foursquare Materials to create a location database or to improve, edit, augment or supplement venue information in Licensee’s own places or location database (if applicable) for their own internal use or (vi) use the Foursquare Materials for the purpose of selling advertisements, ad targeting or ad re-targeting, or offering attribution services or analytics products; (vi) use the Foursquare Materials for any illegal or illicit purpose; or (vii) use the SDK for any life-saving or medical purpose.
- Proprietary Rights. The Foursquare Materials (including, without limitation, all improvements, derivatives, modifications and the like to the Foursquare Materials), and all intellectual property rights in and to the foregoing, are and shall at all times remain the sole and exclusive property of Foursquare and are protected by applicable intellectual property laws and treaties.
- Personal Data Processing. In connection with this Agreement, both Parties shall process Personal Data and Personal Information (each as defined in the Addendum) in accordance with the Addendum included below, which is incorporated by reference herein, and shall comply with each party’s obligations thereunder.
- Compatibility. From time to time, Foursquare may update the SDK or the Service, and Licensee shall promptly incorporate the update to The App If any Licensee App uses or implements an outdated version of the SDK or the Service, Licensee acknowledges and agrees that such App may not be able to communicate with the Service. Licensee understands that Foursquare may cease support of old versions or releases of the SDK.
- Support. Licensee agrees to report to Foursquare any errors or difficulties discovered with respect to the SDK and the characteristic conditions and symptoms of such errors and difficulties. Foursquare is in no way obligated to provide Licensee with any error correction or support, but may provide whatever error correction and/or support services Foursquare may determine in its sole discretion (and anything it provides in connection therewith will be deemed part of the SDK). If Licensee’s access to the Service causes material harm to Foursquare’s infrastructure, Foursquare may suspend Licensee’s access to the Service.
- Feedback. Licensee may provide Foursquare with feedback it reasonably requests with respect to Licensee’s use of the SDK and Services (e.g., suggestions or other information or materials relating to the SDK), and may voluntarily provide additional feedback (collectively, “Feedback”). Licensee hereby grants Foursquare a nonexclusive, transferable, sublicensable, worldwide, perpetual, irrevocable, royalty-free license to freely exploit and make available all Feedback.
- Termination. Foursquare may terminate this Agreement, for any or no reason. In addition, Foursquare may suspend Licensee’s access to the SDK if Foursquare determines that such access may result in material harm to Foursquare, the Services, its systems or its reputation. Foursquare may also terminate this Agreement on written notice if Licensee enters bankruptcy, has a receiver appointed or becomes insolvent. Upon termination, the license granted hereunder will terminate and Licensee shall immediately destroy all copies of the Foursquare Materials in Licensee’s possession or control, together with any and all documents, notes and other materials regarding the SDK to Licensee, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect. The following Sections shall survive termination of this Agreement: 2 through 4 and 7 through 15 .
- Confidentiality. The SDK, along with any other non-public information disclosed by Foursquare in connection with this Agreement, constitutes Foursquare’s confidential information (“Confidential Information”). Licensee hereby agrees (i) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Licensee employs with respect to its own confidential materials), (ii) not to divulge any Confidential Information to any third person (except consultants, subject to the conditions stated below), (iii) not to use any Confidential Information except for the purposes set forth in this Agreement, and (iv) not to copy or reverse engineer any Confidential Information. Any employee or consultant of Licensee given access to the Confidential Information must have a legitimate “need to know” and must be bound to confidentiality obligations and use restrictions at least as protective of the Confidential Information as this Agreement. Licensee acknowledges and agrees that due to the unique nature of the Foursquare’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, Foursquare shall be entitled to seek appropriate equitable relief (without the posting of a bond) in addition to whatever remedies it might have at law. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give as much prior notice as possible of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
- REPRESENTATIONS & WARRANTIES. LICENSEE REPRESENTS AND WARRANTS THAT IT SHALL (A) USE THE LICENSED MATERIAL IN ITS MOBILE APPLICATIONS OR SERVICES WHERE THERE IS A CLEAR BENEFIT TO ITS END USERS AND/OR CONSUMERS AND (B) MAINTAIN SUCH USE IN ITS MOBILE APPLICATIONS OR SERVICES FOR AS LONG AS IT LICENSES THE LICENSED MATERIAL.
- WARRANTY DISCLAIMER FOURSQUARE PROVIDES THE FOURSQUARE MATERIALS “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL FOURSQUARE OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF DATA OR RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SDK OR SERVICES, OR LICENSEE’S END USERS’ USE OF THE APP. FOURSQUARE’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO $1. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSEE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER FOURSQUARE NOR ITS LICENSORS SHALL BE RESPONSIBLE FOR ANY MATTER BEYOND THEIR REASONABLE CONTROL.
- Indemnity. Licensee shall indemnify and hold harmless Foursquare from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys' fees) arising from Licensee's use of the SDK and any claim arising from Licensee’s breach of Section 4.
- Government Use. If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the SDK are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The SDK is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the SDK by the Government shall be governed solely by the terms of this Agreement.
- Export Controls. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the SDK in violation of any such restrictions, laws or regulations. By downloading or using the SDK, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
- Miscellaneous. This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Foursquare to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Foursquare’s rights with respect to such breach or any subsequent breaches. Licensee acknowledges and agrees that due to the unique nature of Foursquare’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Licensee or third parties to unfairly compete with Foursquare resulting in irreparable harm to Foursquare, and therefore, that upon any such breach or threat thereof, Foursquare shall be entitled to injunctions and other appropriate equitable relief without posting a bond in addition to whatever remedies it may have at law. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Foursquare’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Foursquare expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under New York without regard to the conflicts of laws provisions therein. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in New York, New York; Licensee hereby agrees to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
- Modifications. Foursquare reserves the right to modify this Agreement. We will notify Licensee by making the revised version available on this page, and an updated revision date will indicate that changes have been made. If Licensee does not accept the changes, Licensee must stop using the SDK. Licensee’s continued use of the SDK after Foursquare publishes changes means that Licensee is consenting to the updates. Foursquare also reserves the right to modify or discontinue any or all of the Foursquare Materials at any time, for any or no reason, with or without notice. Addendum
This Data Processing Agreement (“DPA”) and the Exhibit attach to and form part of the agreement entered into by and between Foursquare Labs, Inc. (“Foursquare,” “we,” or “us”) and the company identified in the signature block (the “Company,” “you,” or “your”) (the “Agreement”). Foursquare and the Company shall be collectively known as the “Parties” and each individually known as a “Party.” This DPA will remain in force until the date on which the Agreement expires or is terminated in accordance with its terms. Any capitalized term used but not defined in this DPA shall have the meaning set forth elsewhere in the Agreement.
In consideration of the covenants and conditions set forth in the Agreement and this Amendment, and intending to be legally bound, Foursquare and Company hereby agree as follows:
The following capitalized terms, shall have the meanings given to them below:
For the purposes of this Agreement and Section 2 of the Addendum Exhibit: “appropriate technical and organizational measures,” “Collects,” “Data Controller,” “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processed” or “Processing” and “Supervisory Authorities,” shall each have the meaning as set out in the GDPR;
For the purposes of Section 3 of the Addendum Exhibit: “Business Purpose,” “Collect,” “Commercial Purpose,” “Consumer,” “Personal Information, “Process”, “Processed,” “Processing,” “Sell” and “Service Provider” have the meaning given to them by applicable Data Protection Laws;
“Company Personal Data” means, to the extent it is Personal Data under applicable Data Protection Laws, Company Data, Company User Information, Feedback and any other data disclosed by Company to Foursquare in connection with the Agreement.
“Company Personal Information” means, to the extent it is Personal Information under applicable Data Protection Laws, Company Information, Company User Information, Feedback and any other data disclosed by Company to Foursquare in connection with the Agreement.
“Data Discloser” means the Party disclosing Relevant Personal Data to the other Party.
“Data Discloser Data” means all data provided to Data Recipient which relates to Data Discloser’s subscribers, customers and/or end users, and such subscribers, customer and/or end users’ use of Data Discloser’s services which may include Data Discloser Personal Data;
“Data Discloser Personal Data” means Personal Data for which Data Discloser is responsible under the Data Protection Laws and which is provided to Data Recipient in connection with this Agreement;
“Data Protection Laws” means: (a) Regulation (EU) 2016/679 (“GDPR”), Directive 95/46/EC, Directive 2002/58/EC and Directive 2009/136/EC, together with any national implementing laws in any member state of the European Union; (b) Title 1.81.5 - California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100-1798.199 (“CCPA”); and (c) any equivalent legislation, or legislation dealing with the same subject matter, anywhere in the world; each as applicable to either party and each as amended, repealed, consolidated or replaced from time to time.
“Derived Data” means that data which Foursquare derives from Company Data, Company User Information, Feedback and any other data disclosed by Company to Foursquare in connection with the Agreement.
“Data Recipient” means the Party to whom the Relevant Personal Data is disclosed by the Data Discloser.
“Foursquare Personal Data” means any data disclosed by Foursquare to Company in connection with the Agreement which is Personal Data under applicable Data Protection Laws.
“Foursquare Personal Information” means any data disclosed by Foursquare to Company in connection with the Agreement which is Personal Information under applicable Data Protection Laws.
“Privacy Shield Principles” means the data protection principles established under the EU-US Privacy Shield Framework, as administered by the US Department of Commerce, accessible at https://www.privacyshield.gov/article?id=Requirements-of-Participation.
“Relevant Personal Data” means Foursquare Personal Data and Company Personal Data.
“Relevant Personal Information” means Foursquare Personal Information and Company Personal Information.
2. CONFLICTS; GOVERNING LAW; OTHER.
2.1 The Parties mutually agree and acknowledge that, except as otherwise expressly stated in this DPA, the Agreement remains in force according to its terms and conditions. To the extent that any of the terms or conditions contained in this DPA may contradict or conflict with any of the terms or conditions of the Agreement, it is expressly understood and agreed that the terms of this DPA shall take precedence and supersede the contradicting or conflicting terms of the Agreement.
2.2 Unless otherwise stated in the Agreement, (i) this DPA will be governed by and construed in accordance with the laws set out in the Agreement; and (ii) exclusive jurisdiction and venue for any litigation arising under this DPA is as set out in the Agreement and both Parties hereby consent to such jurisdiction and venue for this purpose.
2.3 This Data Processing Addendum supersedes all prior or contemporaneous oral or written agreements concerning its subject matter.
2.4 Any terms that are not expressly defined herein shall have the meanings under the applicable Data Protection Laws.
1. PURPOSE OF DATA SHARING
1.1 This Agreement sets out the framework for: (i) the sharing of Personal Data between each Party, each as a Data Controller under the GDPR; and (ii) the sale of Personal Information by you to us under the CCPA. It defines the principles and procedures that the Parties shall adhere to and the responsibilities the Parties owe to each other. 1.2 The Parties agree to only Process Personal Data that is shared by one Party to the other Party for the purposes set forth in the Agreement.
2. ROLES AND RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO THE GDPR
2.1 Data Discloser hereby grants Data Recipient and its Representatives a non-exclusive, royalty-free, worldwide license to use such Data Discloser Data subject to the terms of this Agreement.
2.2 Data Discloser represents and warrants that it has obtained all necessary consents and complied with all Applicable Laws, including the Data Protection Laws, in order for Data Recipient to use the Data Discloser Data as contemplated under the Agreement.
2.3 Data Recipient acknowledges and agrees that the Data Discloser Data may include Data Discloser Personal Data. In relation to such Data Discloser Personal Data, Data Recipient shall:
2.3.1 use or disclose the Data Discloser Personal Data solely for the purposes set forth in the Agreement or as otherwise authorized by Data Discloser in writing from time to time;
2.3.2 store, use and Process the Data Discloser Personal Data on the basis of one or more of the following legal grounds:
- the Data Subject has unambiguously given his or her consent;
- the Processing is necessary for the performance of a contract to which the Data Subject is a party or in order to take steps at the request of the Data Subject prior to entering into a contract;
- the Processing is necessary for the purposes of the legitimate interests pursued by the Parties except where such interests are overridden by the interests or fundamental rights and freedoms of the Data Subject, in particular where the Data Subject is a child;
2.3.3 store, use and Process the Data Discloser Personal Data in accordance with the transparency requirements under Article 14 of the GDPR;
2.3.4 store, use or Process the Data Discloser Personal Data for no longer than is necessary to carry out the Project and in any event not longer than any statutory or professional retention periods applicable under any Data Protection Laws, and shall return or delete any Data Discloser Personal Data once the storage, use or Processing of the relevant Data Discloser Personal Data is no longer necessary for the purposes for which it was originally shared.
2.3.5 if the Data Recipient Processes the Data Discloser Personal Data for the purposes of direct marketing, the Data Recipient shall ensure that effective procedures are in place to allow the Data Subject to “opt-out” from having their Personal Data used for such direct marketing purposes and the appropriate consent has been obtained from the relevant Data Subject to allow the Data Discloser Personal Data to be used for the purposes of direct marketing in compliance with all applicable Data Protection Laws;
2.3.6 and, to the extent necessary to allow Data Discloser to comply with the applicable Data Protection Laws:
- assist Data Discloser with any data subject access requests which it may receive from individuals to whom any Data Discloser Personal Data relates;
- carry out any reasonable request from Data Discloser to amend, transfer or delete any Data Discloser Personal Data;
- notify Data Discloser about any enquiries from a Data Protection Authority in relation to the Data Discloser Personal Data and cooperate promptly and thoroughly with such Data Protection Authority, to the extent required under the Data Protection Laws; and
- notify Data Discloser about any legally binding request for disclosure of Data Discloser Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibited by law or legal process.
2.4 Data Recipient shall permit Data Discloser at any reasonable time upon fifteen (15) Business Days’ written notice to have access to the appropriate part of Data Recipient’s premises, systems, equipment, and other materials and data Processing facilities to enable Data Discloser to inspect the same for the purposes of monitoring compliance with Data Recipient’s obligations under this Agreement. Such inspection shall not relieve Data Recipient of any of its obligations under this Agreement.
2.5 In the event that Data Recipient does process, access and/or store, or permit any third party including its subcontractors to Process, access or store, Personal Data in any Third Country with the consent of the Data Discloser, Data Recipient shall:
2.5.1 at the Data Discloser’s request (from time to time), enter separately into the Standard Contractual Clauses with the relevant Data Discloser or procure that such Affiliate or third party subcontractor enter into the Standard Contractual Clauses directly with the Data Discloser;
2.5.2 comply, and procure that any relevant Affiliate or third party subcontractor it appoints that Processes, accesses and/or stores the data in a Third Country shall comply with the data importer’s obligations set out in the Standard Contractual Clauses, which are hereby incorporated into and form part of this Agreement), and the Data Discloser will comply with the Data Exporter’s obligations in such Standard Contractual Clauses; or
2.5.3 if agreed between the Data Discloser and Data Recipient, take any other alternative or additional steps reasonably requested by the Data Discloser in order to ensure that appropriate measures are put in place to provide an adequate level of protection for Personal Data (for example, requesting confirmation that the third party subcontractor has the necessary certification under the Privacy Shield Framework and procuring the provision of any additional information or further guarantees in relation to such Privacy Shield certification).
3. ROLES AND RESPONSIBILITIES OF THE PARTIES WITH RESPECT TO THE CCPA
3.1 The Parties acknowledge that the disclosure of Relevant Personal Information by you to us pursuant to this Agreement constitutes Selling for the purposes of the CCPA, we agree that we will:
3.1.1 assist you in order for you to respond to requests from Consumers who exercise rights under the CCPA to delete and opt out from Selling of their Personal Information, and direct any third parties to which we have disclosed such Relevant Personal Information to do the same; and
3.1.2 not respond directly to any Consumers in relation to any such requests we receive directly.
3.2 Subject to applicable Data Protection Laws and otherwise notwithstanding anything to contrary in this Agreement, Company acknowledges and agrees that Foursquare is entitled, at all times, to use the Derived Data for any purpose whatsoever.
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