Automic Developer Distribution License

 

This Automic Developer Distribution Agreement ("Agreement") governs the listing and distribution of Your Applications (defined below) for Automic Software (defined below) on the Automic Marketplace (defined below) and your distribution of Your Applications to the Automic Marketplace users.

By uploading Your Add-On to Automic Marketplace or otherwise distributing or making available any applications or extensions developed using the Automic Materials (as defined below), You agree on behalf of Your organization to the terms and conditions below. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE “AGREE” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, AND DO NOT SUBMIT, UPLOAD OR PROVIDE YOUR APPLICATION ON AUTOMIC ADD-ONS.

If You are entering into this Agreement on behalf of a company or other organization, You must have the authority to bind Your company or organization to this Agreement. (Titles that typically carry that authority include, without limitation: Chairman, Principal, President, Officer, Vice President, Director, Controller, Finance Manager or Purchasing Manager.) We may reject this Agreement if We determine, in Our sole discretion, that You do not have the appropriate authority. In any case, if You are entering into this Agreement on behalf of a company or other organization, You represent that You have the authority to bind it to this Agreement, and the terms "You" and "Your" will refer to that company or organization. If You do not have that authority, You may not list applications on the Automic Marketplace.

 

1. Definitions

"Add-ons" means a reusable software component(s) that may include custom configurations, scripts, data feeds, modular inputs, custom reports or views of User data with the software.

"Apps" means pre-configured dashboards, reports, data inputs and saved searches of the software with its own UI for User data.

“application” means domain-specific software, independent of a particular implementation. Add-Ons and add-ons are application implementations.

“Listing Requirements” means the Approval Criteria and Submission Guidelines published on the Automic Marketplace or other equivalent requirements and guidelines for the Automic Marketplace Application and any updates, new versions, replacements thereto.

"Automic Marketplace" means Our online directory of or platform for downloadable software applications that interoperates with the Automic Software. Among other things, Automic Marketplace allows developers to list their applications, and allows Users to test drive, review and install those applications. Automic Marketplace is currently located at marketplace.automic.com but the Automic Marketplace will include any and all successors, replacements, new versions, derivatives, updates and upgrades thereto.

"Automic Marketplace Application" means an app or application or add-on listed on the Automic Marketplace.

"Automic App Framework" means the tool Automic provides You for creating Add-Ons and add-ons.

"Automic API" means Automic’s API (Application Programming Interface), which is a set of defined interfaces to accomplish a task, such as retrieving or modifying data for every feature in our product and conforming to the principles of Representational State Transfer (REST).

“Automic Confidential Information” means Confidential Information (as defined below in Section 12) of Automic.

"Automic Materials" means the Automic Software, Automic App Framework, Automic API, Automic SDK, example modules, Automic UI, Automic-published applications, Add-Ons and add-ons and any Automic Confidential Information.

"Automic SDK" means the software development kits Automic licenses to You and are written on top of the Automic APIs to allow for broader coverage of the REST API in a language-specific fashion.

"Automic Software" means Our software as licensed separately to You and Users under the Automic Software License Agreement and any updates, upgrades, enhancements and new versions thereto.

"Automic UI" means Automic user interface.

"We," "Us" or "Our" means Automic Software GmbH and its affiliates, any parent company, any affiliates under the control of the parent company.
"You" or "Your" means the person accepting this Agreement or, if that person is accepting this Agreement on behalf of a company or other organization, that company or organization.

"Your Application" means any application, e.g. an add-on or app that You (i) create using the Automic Materials for Your internal use or for a User's use only with Automic Software.

“Your Materials” means Your Application and any content, documentation, information or materials contained in Your Application or otherwise provided by You (including, without limitation, any names, logos, brand features, screen shots, pictures, video tutorials, images, icons, data, and links to Your or third party websites) in connection with Your Application.

"User Configuration/ Usage Data" means information stored in our systems about User's configuration and usage of Your Applications.

"User" means an end user of Your Application who is also an end user of the Automic Software.

 

2. Permission to List Your Applications on the Automic Marketplace

Subject to the terms of this Agreement, You permit Us to list Your Applications and publish Your Materials on the Automic Marketplace upon successful completion of the application review. We reserve the right, in Our sole discretion and for any reason at any time, to revoke this permission and refuse to list Your Application(s) on, or to remove Your Application(s) and/or related listing(s) from, Automic Marketplace.

 

3. Certain Oblications, Representations and Warranties

3.1 Your Responsibilities. You acknowledge that You are solely responsible, and that We have no responsibility or liability of any kind, for the content, development, operation, licensing, distribution, support or maintenance of Your Materials. For example, You will be solely responsible for:

  • (a) the license you use with Your Application;
  • (b) whether you license Your Application as "Free" or "Restricted" on the Automic Marketplace;
  • (c) any payments you require of the User for accessing and downloading Your Application;
  • (d) the technical installation and operation of Your Application;
  • (e) creating and displaying information and content on, through or within Your Application;
  • (f) the accuracy and appropriateness of Your Materials available on the Automic Marketplace, or through or within Your Application;
  • (g) ensuring that Your Materials do not violate or infringe the rights of any third party (including, for example, patents, copyrights, trademarks, trade secrets, privacy, or other personal or proprietary rights); and
  • (h) ensuring that Your Materials are not offensive, profane, obscene, libelous or otherwise illegal or in appropriate.

 

3.2 Your Representations, Warranties and Covenants. You represent, warrant and covenant that:

  • (a) Your Application satisfies all Listing Requirements.
  • (b) Your Materials and the use thereof byUs and any Users do not and will not violate, misappropriate or infringe the rights of any person or entity including any contract rights or any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person or entity;
  • (c) You will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws and privacy and data protection laws, and maintain all licenses, permits and other permissions necessary to list and provide Your Materials;
  • (d) Your Materials will not be offensive, profane, obscene, defamatory, fraudulent or otherwise illegal or inappropriate; and
  • (e) Your Application will not contain any malware, virus, worm, Trojan horse, adware, spyware, malicious code or any software routines or components that permit unauthorized access, to disable or erase software, hardware or data, or to perform any other such actions that will have the effect of materially impeding the normal and expected operation of Your Application and/or Automic Software.

 

4. Applications Listing and Review

While this Agreement is in effect, it will govern the listing of Your Application on the Automic Marketplace, when applicable, and all of Our review of Your Application on the Automic Marketplace. Before you submit Your Application to Us for review and listing on the Automic Marketplace, You will complete evaluation and testing of Your Application as to its technology, functionality, performance, security, and user interface and its compliance with the Listing Requirements. We reserve the right to conduct any type of review of Your Application but may not review fully each and every application submitted; and it is Our sole discretion to determine whether to accept Your Application for listing on the Automic Marketplace or not. Our acceptance and listing of Your Application on the Automic Marketplace does not relieve You of any of the obligations under Section 3. Further, the fact that We may have reviewed, tested or approved Your Application may not relieve You of any of these responsibilities. We may adopt and change our review standards and processes in our sole discretion. All submissions of Your Applications to Us for review or listing on the Automic Marketplace must be made through Our online package submission process. We also reserve the right to make all decisions regarding the placement or promotion of Your Application on the Automic Marketplace.

 

5. Your Reviews of Applications on the Automic Marketplace

The Automic Marketplace allows Users and You to post reviews of Automic Marketplace Applications. Any review by You of another's Application shall be made in good faith after reasonable evaluation of the full Automic Marketplace application. If You post a review of Your Application, You shall disclose Your identity and the fact that the Automic Marketplace application being reviewed is Your Application. If You post a review of a competitor's Application, You shall disclose Your identity and the fact that You publish a competitive application.

 

6. Licenses

6.1 Your License to Us for Your Applications. You grant to Us the right to list Your Application on the Automic Marketplace during the Term. You also grant to US and Our affiliates a permanent, non-exclusive, worldwide, royalty-free, sublicensable license to (a) use, reproduce and test Your Application to determine if it satisfies the Listing Requirements; (b) make available, publicly display, perform, demonstrate, transmit, host, license and distribute Your Application via Automic Marketplace; and (c) use, reproduce, make available, publicly display and perform Your Materials for purposes of marketing, promoting and publicizing Your Application and the Automic Marketplace. You represent and warrant that You own or possess all intellectual property and other rights necessary to grant Us this license.

6.2 Licensing Your Applications to Users. You may distribute or provide Your Applications to Users who are third parties, and offer Your Applications via the Automic Marketplace to Users under Your own license terms subject to the requirement that the license must be for use with Automic Software. Your license will be solely between You and your User, and Your Application license terms shall not make any representations about, or purport to bind Us. In the event that you include your own license terms for Your Application, you will include the following statement in those terms:

"[Developer] is solely responsible for the Application, including, without limitation, for any warranties, maintenance and support, notices and consents to be given to Users. You agree that Automic does not in any way warrant the accuracy, reliability, completeness, usefulness, non-infringement, or quality of this Application and that Automic shall not be liable or responsible in any way for any losses or damage of any kind, including lost profits or other indirect or consequential damages, relating to your use of or reliance upon this application."

 

7. Intellectual Propety Ownership

7.1 Reservation of Rights. Nothing in this Agreement transfers or assigns to You any of Our intellectual property rights in the Automic Materials or any other technology provided by Automic. Except as expressly granted in this Agreement, neither party shall have any right of any kind in the other party’s intellectual property, proprietary technology, websites, products, programs and services.

7.2 Trademarks. Our trademarks, services marks and logos (including, without limitation “Automic”, “Automic Marketplace”) may not be used in any manner except in accordance with Automic’s trademark usage policies (including the Automic Marketplace Naming Guidelines) or with Our prior written consent. You shall not include "Automic" or "Automic Marketplace" in any of Your trademarks or service marks or product, service or company names. You may include the term "Automic" in the names of Your Applications in a referential manner while they are listed on the Automic Marketplace, provided that your use is in compliance with the terms of the Automic Marketplace Naming Guidelines. You shall not bid on or purchase any keyword that is Our trademark (including without limitation Automic or Automic Marketplace) in any keyword advertising service (such as, for example, Google AdWords).

7.3 Competitive Applications. Subject to Our and Your respective rights and obligations under this Agreement, We acknowledge that You and/or other parties may develop and publish applications that are similar to or otherwise compete with Our applications, and You acknowledge that We and/or other parties may develop and publish applications that are similar to or otherwise compete with Your Applications. Nothing in this Agreement will impair Automic's right to develop, acquire, license, market, promote or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that you may develop, produce, market or distribute. Except as provided in a separately executed agreement, Automic will be free to use any information, suggestions, or recommendations You provide Automic pursuant to this Agreement for any purpose.

7.4 Effect of Termination. Upon termination of this Agreement, You agree to immediately cease using the Automic Materials and to return or destroy all copies of the Automic Materials, including any documentation, and other Automic Confidential Information in Your possession or control, and We agree to take down Your Application and remove all Your Materials from the Automic Marketplace in a reasonable timeframe. Termination of this Agreement will not terminate or affect sublicenses granted to Users or other third parties in accordance with this Agreement. The parties' rights and obligations under the following sections of this Agreement will survive any termination or expiration of this Agreement: 7.4 and 10 - 20. Termination of this Agreement will not derogate from any rights You may have under any other agreements with Us.

 

8. Use of User Data

8.1 User Data. To the extent Your Application collects and transmits User Data, You represent and warrant that You have notified all users who have access to the User Data through Your Application, or will notify them prior to their use of Your Application, that their data will be transmitted to You and to that extent We are not responsible for the privacy, security or integrity of such data. You further represent and warrant that to the extent Your Application stores, processes, collects or transmits User Data, neither You nor Your Application will, without appropriate prior user consent or except to the extent required by applicable law, (1) modify the content of the User Data in a manner that adversely affects the integrity of the User Data, (2) disclose User Data to any third party, or (3) use the User Data for any purpose other than providing Your Application functionality to users of Your Applications. You shall also maintain and handle all of User Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations. A modification or disclosure of the User Data does not violate either of the two preceding sentences to the extent it results from an activity of the applicable customer using Your Application and a reasonable customer would expect that modification or disclosure of its data to occur as a result of that activity.

8.2 Your User Configuration/Usage Data. To the extent You receive access to the User Configuration/Usage Data, You represent and warrant that You have notified all of Your Users who are subjects of the User Configuration/ Usage Data, or will notify them prior to their use of Your Application, that You may receive such data from Us, and to that extent We are not responsible for the privacy, security or integrity of the User Configuration/Usage Data. You further represent and warrant that to the extent You or Your Application stores, processes, collects or transmits User Configuration/Usage Data, neither You nor Your Application will, without appropriate prior user consent or except to the extent required by applicable law, (1) modify the content of the User Configuration/Usage Data in a manner that makes it inaccurate or misleading, (2) disclose Your User Configuration/Usage Data to any third party other than Your applicable customer, or (3) use Your Customer Configuration/ Usage Data except in connection with Your relationship with Your applicable customer. You shall also maintain and handle all of Your User Configuration/Usage Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations. Notwithstanding the foregoing, this paragraph does not restrict Your use or disclosure of aggregated data containing Your User Configuration/Usage Data, provided none of Our customers are identified or identifiable through such aggregated data or through Your use of such aggregated data.

 

9. Confidentiality

9.1 Definition of Confidential Information. As used in this Agreement, "Confidential Information" means any information described below which is disclosed by one party (You or Us) to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information is limited to non-public aspects of Your Applications and any nonpublic information that You submit to Us in writing (including electronically) as part of our process for reviewing or listing Your Applications. Our Confidential Information is limited to nonpublic aspects of Automic Marketplace and our applications; non-public aspects of third-party applications listed on the Automic Marketplace to which you obtain access as a result of the relationship between You and Us under this Agreement; and nonpublic technology, technical information and product plans to which you obtain access as a result of the relationship between You and Us under this Agreement. Confidential Information (except for Our customer data) shall not include any information that: (i) is or becomes generally known to the public without breach of an obligation owed to the disclosing party; (ii) was known to the receiving party before its disclosure by the disclosing party without breach of an obligation owed to the disclosing party; (iii) was independently developed by the receiving party without breach of an obligation owed to the disclosing party; or (iv) is received from a third party without breach of an obligation owed to the disclosing party.

9.2 Confidentiality Obligations. During the term of this Agreement and for five (5) years thereafter, the Recipient shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

9.3 Compelled Disclosure. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser's cost, if the Discloser wishes to contest the disclosure.

9.4 Remedies. If the Recipient discloses or Uses (or threatens to disclose or Use) any Confidential Information of the Discloser in breach of confidentiality protections hereunder, the Discloser shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

 

10. Warranty Disclaimer

We make no warranty or guarantee regarding:

(a) any benefits or services that We provide to You as a Automic Marketplace developer. In particular, We do not warrant or guarantee that those services and benefits will increase Your sales;or

(b) any third-party applications or content on the Automic Marketplace, even if We reviewed, certified or moderated those applications or content.

We hereby disclaim all warranties, including but not limited to any implied warranties of merchantability or fitness for a particular purpose, relating to the above.

 

11. Risk of Infridgement of Intellectual Property Rights Release

You acknowledge the risk that Users who access Your Materials through the Automic Marketplace may develop applications that infringe or misappropriate Your intellectual property rights in Your Applications. Nothing in this Agreement restricts You from pursuing claims against such Users. However, in that event, You agree that Our provision of the Automic Marketplace does not constitute contributory infringement or aiding or abetting of any such infringement or misappropriation.

You hereby release and waive all claims against Us from any and all liability for claims, damages, costs and expenses of every kind and nature, arising out of or in any way connected with Your Materials and Your use of the Automic Marketplace. If You are a California resident, You waive Your rights under California Civil Code Section 1542, which states “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor.” Residents of other states and nations similarly waive their rights under applicable and/or analogous laws or regulations.

 

12. Indemity

You shall indemnify and hold Us and Our subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs), arising out of a claim or demand (i) alleging that any of Your Materials infringes, misappropriates or violates any rights of a third party; (ii) arising out of an alleged breach by You related to any of Your Materials or Your breach of this Agreement. We will provide prompt notice in writing of the claim; will grant You sole control of the defense and settlement of the claim; and will provide You with all assistance, information and authority reasonably required for the defense and settlement of the claim, at Your cost.

 

13. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AUTOMIC SHALL NOT HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR AUTOMIC ADD-ONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY AND DUE FROM YOU UNDER THIS AGREEMENT.

 

14. Governing Law

Any action or claim brought in connection with this Agreement shall be brought only in the courts having jurisdiction for this Automic entity, except that, without limiting the application of the arbitration clause below, i) in the United Kingdom, English Law governs this Agreement and the parties will be subject to the to the jurisdiction of the English courts, ii) in the United States, the laws of the State of Washington govern this Agreement and the parties will be subject to the jurisdiction of the state or federal courts having jurisdiction for Seattle, Washington, iii) in Canada, the laws of the Province of Ontario govern this Agreement and the parties will be subject to the jurisdiction of the courts having jurisdiction for Toronto, Ontario, and iv) in Hong Kong and in the United Arab Emirates, English law governs this Agreement and the arbitration clause shall apply.

When You are incorporated neither in the European Union, Switzerland, Norway, the United States, Canada, Australia nor in Singapore, the parties agree that any dispute arising out of or relating to this Agreement which cannot be resolved by attempts made in good faith by and between the parties, shall be submitted to the International Court of Arbitration of the International Chamber of Commerce for final settlement in accordance with its Rules of Arbitration as in force when the dispute arises. The place of arbitration shall be Seattle, Washington, if You are incorporated in the Americas; and Vienna, Austria, in all other cases. The procedure shall be conducted in the English language.

 

15. Export / Import Control

Some countries have restrictions on the use of encryption within their borders, or the import or export of encryption even if for only temporary personal or business use.  You acknowledge that You are ultimately responsible to comply with any and all government export, import and other applicable laws.  In particular, but without limitation, Automic Materials and Your Materials may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use or re-export any Automic Materials and Your Materials for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons. You will be solely responsible for ensuring that Your provision of Your Materials to Users through the Automic Marketplace comply with any and all regulations regarding export and import of technology in relevant jurisdictions.

 

16. No Publicity

You will not make any public statement, press release, or other announcement relating to the Automic Marketplace or this Agreement without the prior written approval of Automic, except as required by law.

 

17. Miscellaneous

No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of the party, and no single waiver will constitute a continuing or subsequent waiver. This Agreement will bind Your successors but may not be assigned, in whole or part, by You without the written approval of Us. Any non-conforming assignment shall be null and void. If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter. No addition to or removal or modification of any of the provisions of this Agreement will be binding upon Us unless made in writing and signed by Us.