- “SDK” means the Giphy Software Development Kit (including without limitation, the software library, binary executables, packaged APIs and code samples, but otherwise not including source code), in the form and format provided by Giphy. The SDK may include runtime components that must be embedded in an Application for interoperability with Giphy’s services.
- “Application” means a software application created by the Licensee using the Giphy SDK that is interoperable with Giphy’s services. Applications may include Giphy’s runtime components.
2. SDK License.
- License Grant. Subject to the terms and conditions of this Agreement, Giphy, Inc., a Delaware corporation with an address at 416 West 13th Street, Suite 207, New York, NY 10014 (“Giphy”) grants to Licensee a limited, non-exclusive, non-transferable, non-assignable right to (i) use, install, run, perform and display the SDK for the sole purpose of developing Applications and (ii) sublicense, copy, transmit and distribute such Applications to third parties, provided that any such sublicense, copy, transmission or distribution shall be made subject to a sublicense agreement that shall include, at a minimum, the following terms and conditions (1) only a limited, non-exclusive, non-transferable, non-assignable right to use a copy of such Applications is granted to such sublicensee; (2) no ownership interest in the Applications is transferred to sublicensee; (3) sublicensee will not copy Applications except as necessary to use such Applications and for backup and archive purposes in connection with such use; (4) if a sublicensee’s right to use is terminated for any reason, such sublicensee will either destroy or return all copies of Applications in its possession; (5) such sublicensee will not distribute, rent, lease, sell, offer to sell, or transfer Applications to any other party except as authorized by Licensee; (6) such sublicensee will not export or re-export Applications without the appropriate United States and/or foreign government licenses; (7) such sublicensee will not modify, adapt, decompile, reverse engineer, disassemble, create derivative works, or derive the source code of the Applications; (8) Giphy and its licensors do not warrant Applications and do not assume any liability regarding Applications; (9) Giphy and its licensors will not be liable for any incidental, indirect, consequential, direct, compensatory or special damages; and (10) if any support is provided to the sublicensee, Giphy and its licensors do not undertake to furnish any support or information regarding Applications. Licensee shall use commercially reasonable efforts to enforce each sublicense agreement and shall notify Giphy of any breach of a material obligation under any agreement, and shall cooperate with Giphy in any legal action to prevent or stop unauthorized use, reproduction or distribution of an Application.
- Limitations. Licensee may not, directly or indirectly, (i) make, rent, lease, sell, offer to sell, modify, adapt, decompile, reverse engineer, disassemble, create derivative works, or derive the source code of the SDK or any part of the SDK; (ii) distribute, transmit or provide the SDK or any Application to any third party, except as expressly permitted by this Agreement, without the prior written consent of Giphy; or (iii) use the SDK for performing comparisons or other “benchmarking” activities, either alone or in connection with any software (and Licensee will not publish any such performance information or comparisons).
- Modifications. Licensee agrees that the form, function and nature of the SDK that Giphy provides may change without prior notice and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK. Licensee agrees that Giphy may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to Licensee or to users generally at Giphy’s sole discretion, without prior notice.
- Support and Upgrades. If Giphy provides Licensee with any upgrades, patches, enhancements, or fixes for the SDK, then the items that are provided will become part of the SDK and subject to this Agreement. Giphy shall have no obligation, however, under this Agreement to provide any upgrades, patches, enhancements, fixes or any other support to Licensee for the SDK.
- Use of Applications. Licensee agrees to use the SDK and write applications only for purposes that are expressly permitted by (i) this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
- Nonassertion by Licensee. Licensee agrees not to assert any patent rights related to the SDK or any Applications against Giphy, Giphy’s distributors, Giphy’s customers, or other licensees of the SDK for making, using, selling, offering for sale, or importing any products or technology developed using the SDK.
3. Use of the SDK.
- License to Giphy. Giphy agrees that it has no right, title or interest from Licensee (or its users) under this Agreement in or to any Applications (other than Giphy’s rights in the runtime components of any such Application). .
4. Proprietary Rights and Confidentiality.
- Trademarks. Nothing in this Agreement gives Licensee a right to use any of Giphy’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features, except as expressly set forth in Section 4.3 below.
- Notices. Licensee agrees that Licensee will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.
- Branding. For any Applications, Licensee will include on any and all splash screens, packaging, promotional materials and documentation, whether electronic or hard copy, Giphy branding as set forth in the SDK (“Giphy Branding”). Giphy hereby grants to Licensee a limited, non-exclusive, non-transferable right and license to use the Giphy Branding solely in connection with the use, distribution and display of the Application. All such use shall inure to the benefit of Giphy and shall be in accordance with Giphy’s branding guidelines that may be provided to Licensees from time-to-time.
- Ownership. The SDK is licensed, not sold. The SDK is protected by the copyright laws of the United States and international copyright treaties. Except for the limited rights and licenses expressly granted hereunder, no other license is granted (by implication, estoppel or otherwise), no other use is permitted and Giphy (and third party licensors) shall own and retain all rights, title and interests (including intellectual property rights) in and to the SDK and the Giphy Branding. Licensee agrees not to take any action inconsistent with such ownership. Licensee acknowledges and agrees that Giphy is and shall be free (and shall be free to permit others) to use and exploit, in any manner and for any purpose, during and after the term of this Agreement, any and all modifications, corrections, improvements and extensions to the SDK that Licensee or any of its users may suggest to Giphy.
- Confidentiality. Licensee shall take all reasonable measures to maintain the confidentiality of the SDK and other Giphy technical information obtained by it (“Confidential Information”), and will not disclose the Confidential Information to any third party. Licensee shall at all times, both during the term of this Agreement and thereafter until the Confidential Information falls into one of the exceptions below, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Giphy under this Agreement, nor shall Licensee disclose any such Confidential Information to third parties without Giphy’s written consent. Licensee shall similarly bind its employees, consultants and independent contractors to the confidentiality obligations in this Agreement, and shall be responsible for any breaches thereof. Licensee further agrees to return to Giphy all Confidential Information (including copies thereof) in Licensee’s possession, custody or control upon termination of this Agreement at any time and for any reason. The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is in result of Licensee’s breach of this Agreement; (ii) prior to disclosure hereunder was already rightfully in Licensee’s possession; (iii) subsequent to disclosure hereunder is obtained by Licensee on a non-confidential basis from a third party who has the right to disclose such information to the Licensee; or (iv) is required to be disclosed pursuant to a court order, so long as Giphy is given adequate notice and the ability to challenge such required disclosure.
5. Term and Termination.
- Term. This Agreement shall become effective on the Effective Date and shall remain in effect for a period of one (1) year. This Agreement will automatically renew for successive periods of one (1) year unless either party terminates this Agreement as set forth below.
- Termination. Access to the SDK may be terminated or suspended by Giphy at any time in Giphy’s sole discretion. In addition, either party may, at any time, terminate this Agreement immediately upon written notice to the other party.
- Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (i) Licensee shall stop using the SDK, return or destroy all copies of the SDK (and all records, materials and information developed therefrom) and permanently erase the SDK from all storage media, (ii) provided that this Agreement is not terminated due to breach by Licensee, Licensee may continue to use and sublicense any Application developed prior to termination in accordance with the term and conditions of this Agreement, (iii) all obligations that accrued prior to the effective date of termination and any remedy for breach of this Agreement shall survive any termination and (iv) the provisions of Sections 4 (Proprietary Rights and Confidentiality), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), 8 (Indemnification), 10 (Miscellaneous) and this Section 5.3 shall also survive.
6. WARRANTY DISCLAIMER. USE OF THE SDK IS AT LICENSEE’S SOLE RISK AND THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. USE OF THE SDK AND ANY MATERIAL OTHERWISE OBTAINED THROUGH OR DERIVED FROM THE USE OF THE SDK IS AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR OTHER DEVICES OR LOSS OF DATA THAT RESULTS FROM SUCH USE. GIPHY DOES NOT WARRANT THAT THE SDK WILL BE COMPATIBLE WITH ANY APPLICATIONS OR ENVIRONMENTS OR OTHERWISE MEET LICENSEE’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. GIPHY FURTHER EXPRESSLY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INTEGRATION, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.
7. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT VOID UNDER APPLICABLE LAW, GIPHY SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) MATTER BEYOND ITS REASONABLE CONTROL; (II) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (III) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (IV) DAMAGES, IN THE AGGREGATE, IN EXCESS OF US$25.00, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8. Indemnification. To the maximum extent permitted by law, Licensee shall defend, indemnify and hold harmless Giphy, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (i) use of the SDK, (ii) any Applications (including without limitation, any claim that any Application infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy) and (iii) any non-compliance by Licensee or its users with this Agreement.
- Entire Agreement. This Agreement constitutes the entire legal agreement between Licensee and Giphy and governs use of the SDK (excluding any services that Giphy may provide under a separate written agreement), and completely replaces any prior agreements between Licensee and Giphy in relation to the SDK. This Agreement is in English only, which shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
- Changes. Giphy may make changes to the Agreement as it distributes new versions of the SDK. When these changes are made, Giphy will make a new version of the Agreement available.
- Waiver. No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party. No waiver by any party of any breach or default of by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
- Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
- Assignment. The rights granted in this Agreement may not be assigned or transferred by Licensee, in whole or in part, without the prior written approval of Giphy. Giphy may assign, transfer or delegate any of its rights and obligations hereunder without consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
- Governing Law. Section 11 and 12 of the Terms of Service will apply to any claims arising out of this Agreement.
- Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
[May 8, 2019]