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.
- 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.
- 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.
- European Union. This Section 18 shall apply if the App or Licensee processes Relevant Personal Data as defined herein.
In the course of Processing Relevant Personal Data (defined below) in connection with the Agreement, Foursquare and Licensee agrees to comply with its respective processing obligations set forth below, each acting reasonably and in good faith. In the event of a conflict, in relation to the Processing of Relevant Personal Data, between this Section 18 and the other terms of the Agreement, this Section 18 shall prevail. Any capitalized term used but not defined in this Section 18 shall have the meaning set forth elsewhere in the Agreement.
The following capitalized terms used in this Section 18 shall have the meanings given to them below: “appropriate technical and organizational measures,” “Controller,” “Data Protection Impact Assessment,” “Data Subject, “Processor,” “Processing,” “Personal Data,” and “Supervisory Authority,” have the meaning given to them by applicable Data Protection Laws.
“Data Protection Laws” means: (a) Regulation (EU) 2016/679, 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; and (b) 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.
“Foursquare Personal Data” means any data disclosed by Foursquare to Licensee in connection with the Agreement which is Personal Data under applicable Data Protection Laws.
“Licensee Personal Data” means, to the extent it is Personal Data under applicable Data Protection Laws, Licensee Data, Licensee User Information, Feedback and any other data disclosed by Licensee to Foursquare in connection with the Agreement.
“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 Licensee Personal Data.
“Sub-processor” means any Processor engaged by the Processor Party (defined in Section 3 below) to Process Relevant Personal Data in accordance with and as permitted by the Agreement
B. ROLES AND RESPONSIBILITIES OF THE PARTIES
1. Both parties shall, in connection with the Agreement, only Process Relevant Personal Data in accordance with the requirements of applicable Data Protection Laws.
2. The parties hereby acknowledge and agree that either party may, from time to time, as expressly permitted by the Agreement, act as a Controller in respect of Relevant Personal Data it receives from the other party, in which case the party receiving the Relevant Personal Data shall:
(a) only Process the Relevant Personal Data for limited and specified purposes consistent with the consent provided by the Data Subject or another lawful basis under applicable Data Protection Laws;
(b) provide the same level of protection for the Relevant Personal Data as the Privacy Shield Principles, not including the requirement to be a Privacy Shield organization or have an independent recourse mechanism, provided it makes available an equivalent mechanism; and
(c) if it makes a determination that it can no longer provide protection in accordance with Section 2(b), notify the other party and cease Processing or take other reasonable and appropriate steps to remediate.
3. The parties hereby acknowledge and agree that, in the event that a party Processes Relevant Personal Data on behalf of the other party, the party performing such Processing shall be a Processor (the “Processor Party”) on behalf of the other party (the “Controller Party”). The Processor Party shall, in relation to such Processing:
(a) Process Relevant Personal Data (including any transfers of Relevant Personal Data to recipients located outside the European Economic Area) only for limited and specified purposes on behalf of and in accordance with the Controller Party’s prior written instructions, which shall be deemed to include an instruction to Process Relevant Personal Data as necessary to perform the Processor Party’s obligations under the Agreement, unless such instruction is amended in writing by the Controller Party;
(b) if at any point the Processor Party is unable to comply with the Controller Party’s instructions regarding the Processing of Relevant Personal Data (whether as a result of a change in applicable Data Protection Laws, or a change in the Controller Party’s instructions, or howsoever), the Processor Party shall promptly: (i) notify the Controller Party of such inability, providing a reasonable level of detail as to the instructions with which it cannot comply and the reasons why it cannot comply, to the greatest extent permitted by applicable law; and (ii) cease all Processing of the affected Relevant Personal Data (other than merely storing and maintaining the security of the affected Relevant Personal Data) until such time as the Controller Party issues new instructions with which the Processor Party is able to comply;
(c) ensure that its employees, officers, representatives, advisers or consultants, and any Sub-processors, have committed themselves to ensuring the confidentiality of all Relevant Personal Data that they Process;
(d) implement appropriate technical and organizational measures, taking into account in particular the risks presented by Processing, in particular from accidental or unlawful loss, alteration, unauthorized disclosure or access to Relevant Personal Data. Such measures shall ensure a level of security appropriate to the risk;
(e) in each instance in which the Processor Party engages a Sub-processor: (i) only appoint such Sub-processor in accordance with the prior written authorization of the Controller Party (such authorization not to be unreasonably withheld, conditioned or delayed), including as permitted pursuant to the Agreement; (ii) keep the Controller Party informed of any change to the role or status of any Sub-processor; (iii) enter into a binding written agreement with the Sub-processor that imposes on the Sub-processor the same obligations that apply to the Processor Party under the Agreement, including this DPA, with respect to the Processing of Relevant Personal Data; and (iv) remain primarily liable and responsible for the acts and omissions of each Sub-processor that breach such Sub-processor’s data protection obligations as if they were acts and omissions of the Processor Party;
(f) at the Controller Party’s request and expense, promptly provide the Controller Party with all reasonable assistance necessary to respond appropriately to requests from Data Subjects to exercise their rights;
(g) taking into account the nature of the Processing, assist the Controller Party by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller Party’s obligation to respond to requests for exercising a data subject’s rights under applicable Data Protection Laws;
(h) promptly provide the Controller Party with all information necessary to enable the Controller Party to demonstrate compliance with its obligations under Applicable Data Protection Laws, to the extent that the Processor Party is able to provide such information;
(i) permanently and securely delete (or, at the election of the Controller Party, return) all Relevant Personal Data in the possession or control of the Processor Party or any of its Sub-processors or upon notification by the Controller Party that a Data Subject has exercised its right to delete any Relevant Personal Data in its control or possession, within thirty (30) calendar days after the termination or expiration of the Agreement, unless otherwise required by any applicable law of the EU or an member state of the EU; and (ii) procure that its Sub-processors shall do the same;
(j) at the Controller Party’s request and expense: (i) promptly provide the Controller Party with all information necessary to enable the Controller Party to demonstrate compliance with its obligations under applicable Data Protection Laws, to the extent that the Processor Party is able to provide such information; and (ii) allow for and contribute to audits, conducted by the Controller Party or an independent auditor selected by the Controller Party and bound by a duty of confidentiality, including inspection, of any documentation, responses to questions and other written information reasonably requested by the Controller Party or such auditor;
(k) upon the Controller Party’s reasonable request, promptly provide the Controller Party with all reasonable assistance necessary to enable the Controller Party to: (i) notify relevant breaches of applicable Data Protection Laws to the relevant Supervisory Authorities and/or affected Data Subjects; and (ii) obtain any necessary authorizations from Supervisory Authorities;
(l) provide at least the same level of privacy protection as is required by the Privacy Shield Principles and, upon reasonable notice, undertake reasonable and appropriate steps to stop and remediate unauthorized Processing;
(m) notify the Controller Party if the Processor Party makes a determination that it can no longer meet its obligation to provide the same level of protection as is required by the Privacy Shield Principles;
(n) Process the Personal Data in a manner consistent with the Controller Party’s obligations (if any) under the Privacy Shield Principles; and
(o) taking into account the nature of the Processing, assist the Controller Party in responding to individuals exercising their rights under the Privacy Shield Principles.
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