SDK Agreement

SDK Agreement

THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO THE SOFTWARE DEVELOPMENT KIT (SDK) AND/OR APPLICATION PROGRAMMING INTERFACE (API) (AND RELATED MATERIALS AND INFORMATION (COLLECTIVELY, THE “PACKAGE”) PROVIDED TO YOU BY ANOMALI INCORPORATED (“ANOMALI”). YOUR PROCUREMENT OF, USE OF, OR ACCESS TO THE PACKAGE IS SUBJECT TO YOUR, AND THE ENTITY YOU REPRESENT, (TOGETHER, “CLIENT”) COMPLIANCE WITH THIS AGREEMENT.

1. Package License. Subject to the terms of this Agreement, Anomali grants to Licensee a personal, non-sublicensable, nonexclusive, nontransferable, limited license to use the Package in accordance with the documentation supplied by Anomali solely for Licensee’s internal use as provided below. Licensee agrees to use and otherwise act with respect to the Package, and the information contained therein, only as specifically authorized herein. Use of the Package will be limited to using the Package to make Licensee’s own services fully compatible and interoperable with Anomali’s platform. For the avoidance of doubt, this license does not authorize incorporation or embodiment of any part of the Package, or any information contained therein or any other Licensee intellectual property, in or with any product or service. Any information Licensee receives, or generated, from its access to the Anomali platform (“Information”) is Anomali’s confidential information and will not be used by Licensee for any purpose except in furtherance of the license above.
2. Restrictions. Licensee will not reproduce or modify the Package or any portion thereof. Licensee shall not rent, sell, lease or otherwise transfer or disclose the Package or any part thereof or any information therein or use any of the foregoing for the benefit of a third party. To the extent the Package consists of software, Licensee shall use such software in object code form only. Licensee shall not reverse engineer the Package or anything contained therein. Licensee will not patent anything that relates to, or builds upon, extends, supplements, is based on or surrounds any aspect of any portion of the Package or information therein (and will not authorize, enable or permit any third party to do so); if in case of a breach of this restriction, Anomali will automatically have (and is hereby granted) a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, assignable right and license to fully exercise all resulting patent rights and to allow others to do so.
3. Proprietary Rights. As between Anomali and Licensee, the Package (including, without limitation, all improvements, derivatives, modifications and the like to the Package), and all intellectual property rights in and to the foregoing, are and shall at all times remain the sole and exclusive property of Anomali and are protected by applicable intellectual property laws and treaties (“Anomali IP”). Subject to the terms and conditions set forth in this Agreement, Licensee shall and hereby does transfer and assign to Anomali all right, title and interest in and to any interest Licensee may have in the Anomali IP, and Anomali hereby accepts such transfer.
4. Fees. The Package may be provided free of charge. Fees may be imposed by Anomali at any time on thirty (30) days’ notice (email is sufficient). If fees apply, Licensee shall pay Anomali as agreed to by the parties in writing. All payments to be made by Licensee shall be made within fifteen (15) days after receipt of Anomali’s invoice. Any late payments by Licensee under this Agreement will be assessed a late fee equal to one and one-half percent (1.5%) of the amount owed per month, or the maximum amount permitted by applicable law, whichever is lower (plus the costs of collection). All payments owed by Licensee to Anomali are exclusive of, and Licensee shall pay, all sales, use, excise and other taxes which may be levied upon either party in connection with such payments, except for taxes based on Anomali’s net income.
5. Support. Licensee agrees to report to Anomali any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties. Anomali is in no way obligated to provide Licensee with any error correction or support, but may provide whatever error correction and/or support services Anomali may determine in its sole discretion (and anything it provides in connection therewith will be deemed part of the Package).
6. Interoperability. Licensee shall endeavor inform Anomali with respect to the interoperability and compatibility of Licensee’s products and services (as applicable) with Anomali’s platform as contemplated herein, and any issues or problems with respect thereto; Licensee will use its best efforts to achieve full interoperability and compatibility.
7. Confidentiality. The Package (including, without limitation, all improvement, derivatives, modifications and the like), and all Information, constitutes Anomali’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 given access to the Confidential Information must have a legitimate “need to know” and shall be similarly bound in writing. Licensee will not disclose any such information to consultants that make or distribute or offer and products or services that are competitive with any of Anomali’s products or services. Licensee acknowledges and agrees that due to the unique nature of the Anomali’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, Anomali shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
8. Indemnity. Licensee will indemnify Anomali and its officers, directors, agents and employees from all losses, liabilities, damages, settlements, costs and expenses (including attorneys’ fees) arising from or related to a claim (a) Licensee own products and services (including, without limitation, infringement of any third party rights), (b) Licensee’s negligence or misconduct or (c) arising from any use of the Package not expressly authorized herein.
9. DISCLAIMER. THE PACKAGE AND ANY SERVICES AND INFORMATION ARE PROVIDED “AS IS.” EXCEPT FOR BODILY INJURY, ANOMALI AND ITS LICENSORS AND PROVIDERS DISCLAIM ALL WARRANTIES RELATING TO THE PACKAGE OR ANY INFORMATION OR SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOR CLARITY, NEITHER ANOMALI NOR ITS LICENSORS OR PROVIDERS MAKES ANY WARRANTIES OF ANY KIND WITH RESPECT TO (I) THE ACCURACY OF ANY INFORMATION GENERATED BY ITS SERVICES OR PLATFORM OR (II) LICENSEE’S RELIANCE ON ANY SUCH INFORMATION.
10. Limitation of Remedies and Damages. ANOMALI AND ITS LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, EVEN IF FORESEEABLE OR (C) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF US$1000.00. ANOMALI AND ITS LICENSORS AND PROVIDERS SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. FOR CLARITY, NEITHER ANOMALI NOR ITS LICENSOR OR PROVIDERS SHALL HAVE ANY LIABILITY WITH RESPECT TO (I) THE ACCURACY OF ANY INFORMATION GENERATE BY ITS SERVICES OR PLATFORM OR (II) LICENSEE’S RELIANCE ON ANY SUCH INFORMATION.
11. 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 DECISIONS BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
12. Termination. This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason on two (2) days’ notice including, but not limited to, if Licensee violates any provision of this Agreement. Upon termination, the license granted hereunder shall terminate and Licensee shall immediately return the Package, together with any and all documents, notes and other materials regarding the Package or its contents to Anomali, including, without limitation, all portions 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 9 through 15.
13. 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 Package 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 Package is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Package by the Government shall be governed solely by the terms of this Agreement.
14. 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 Package in violation of any such restrictions, laws or regulations. By downloading or using the Package, 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.
15. General. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. All disputes will be subject to arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (JAM) – by one (1) arbitrator elect in accordance with such rules and procedures. The JAMS Streamlined Rules will apply if available. The arbitration will take place in San Francisco, CA. The question of whether a claim may be subject to arbitration (versus a court) – will be decided by the arbitrators. In the event a claim is deemed not subject to arbitration, the claim will be subject to the sole and exclusive jurisdiction of, and venue in, the state and Federal courts located in San Francisco, CA. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by an arbitrator (or court, if applicable) to be unenforceable, such 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. Neither party may assign or transfer this Agreement without the other party’s prior written consent; provided that, either party may, without consent, assign this Agreement to a successor to all or substantially all of its business or assets. In the event of such an assignment, the other party may terminate this Agreement on thirty (30) days prior written notice. All notices required or permitted under this Agreement will be in writing and will be sent to the addresses set forth in the first page of this Agreement (or such other address as a party may designate in writing). This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto. This Agreement may only be modified on mutual written agreement of the parties.

Rev 20220421.1

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