These Terms of Service (these “Terms”) govern your access to and use of the Software Development Kit and services (“SDK”) and any related training, information or materials provided in connection with your use of the SDK (collectively, the “Content”) provided by Wunderkind Corporation (“Wunderkind”) or its affiliates. By using the SDK or the Content, you acknowledge and represent that you have read, understand, accept and agree to these Terms, our Privacy Policy and all other policies or notices posted by Wunderkind on our website at www.wunderkind.co (collectively, the “Policies”). If you do not accept or agree to these Terms or such Policies, you may not access or use the SDK or any Content.
The terms of the Platform Agreement (together with any Order Forms, exhibits, schedules or addenda thereto, the “Platform Agreement”), by and between Wunderkind and your employer or the entity for which you are acting as an agent or representative of (the “Company”), remain in effect. The SDK is a Platform, as defined in the Platform Agreement, and the Content constitutes Services, as defined in the Platform Agreement. In the event of any conflict or inconsistencies between the Platform Agreement and these Terms, the Platform Agreement shall control unless expressly stated otherwise in these Terms. All capitalized terms used herein but not otherwise defined will have the meanings ascribed to them in the Platform Agreement.
Wunderkind reserves the right, in its sole discretion, to change, modify, add or remove portions of these Terms and/or the Policies. It is your responsibility to check these Terms and the Policies periodically for changes. Wunderkind will post a current copy of these Terms at www.wunderkind.co/terms/SDK/. Your continued use of the SDK following the posting of any changes will mean that you accept and agree to such changes. Company’s violation of these Terms, Policies, or the Platform Agreement may result in Wunderkind suspending access to the SDK.
Company may, in connection with the SDK, develop a mobile application (“Company Application”) as permitted by these Terms.
Ownership
The SDK is the property of Wunderkind. All right, title and interest in and to the SDK shall remain exclusively with Wunderkind. As between Wunderkind and the Company, Wunderkind exclusively owns and nothing in these Terms assigns or transfers any Intellectual Property Rights in the SDK to the Company. Subject to the limited license granted in these Terms, nothing assigns or transfers the Company’s Intellectual Property Rights in Company’s Application.
License
As long as you comply with these Terms, Wunderkind grants you a personal, revocable, non-exclusive, non-transferable, non-assignable, limited license to access and use the SDK and the Content, subject to the terms and conditions below and in the Platform Agreement. As long as you comply with these Terms, Wunderkind grants you the right to sub-license the SDK to an end user of Company Application solely to the extent such license is required for the operation of the Company Application.
The Company may adapt or integrate the SDK with the Company’s application as defined in an applicable Order Form. The SDK may only be used for the scope granted in the applicable Order Form. The SDK may only be used for a purpose or in a manner for which the SDK was designed.
Company Responsibilities
With respect to the Company Application, Company acknowledges and agrees that Wunderkind has no obligations, responsibilities, or liabilities to end users of the Company Application (“End Users”). Company will ensure that all End Users accept a terms of use, a legally adequate privacy policy, and/or other agreements governing the use of each Company Application directly with Company (collectively, “Customer Terms”).
The Company Application must not violate these SDK Terms, the Policies, or the Platform Agreement. In the event Wunderkind reasonably believes that any Company Application violates any of the foregoing, Company shall promptly, upon written notice from Wunderkind and at Company’s sole cost, modify and redistribute the Company Application and use its best efforts to disable or otherwise prevent End Users from using prior versions of the Company Application that violate these SDK Terms, the Policies, or the Platform Agreement.
The Company Application may not compete with or substantially replicate products or services offered by Wunderkind, including, without limitation, functions or clients on platforms (such as iOS or Android) where Wunderkind offers its own service or a substantially similar function..
Company Application may not use, access or call the SDK in order to monitor the availability, performance, or functionality of the SDK, for any similar benchmarking or competitive purposes, or to identify, exploit or publicly disclose any potential security vulnerabilities.
Except through a Company Application as expressly permitted by these Terms, Company shall not, under any circumstances, repackage or resell the SDK.
“Acceptable Use Policy”: Company shall not, and shall not attempt to:
- interfere with, modify or disable any features, functionality or security controls of the SDK;
- defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the SDK;
- reverse engineer, decompile, disassemble, or derive source code, underlying ideas, algorithms, structure, or organizational form from the SDK Service;
- modify or make derivative works of the SDK Service except as expressly permitted by in the License section above;
- use the SDK with any software or other materials that are subject to licenses or restrictions (e.g., open source software licenses) that, when combined with the SDK, would require Wunderkind or any other person or entity to disclose, license, distribute or otherwise make all or any part of the SDK available to anyone;
- use the SDK in any manner that does or could potentially damage, disable, overburden, impair, undermine, abuse, interfere with or disrupt the security or performance of the SDK or Platform, Company’s SDK account or any servers or networks connected to the SDK or Wunderkind’s security systems or that could or does introduce malicious software into the foregoing;
- remove, modify, or obscure any copyright, patent, trademark or other proprietary or attribution notices on or in the SDK; and/or
- copy the SDK or any portion thereof except as expressly permitted herein (provided, however, that for the purposes of this subsection, or “copy” shall not include copying of statements and instructions of the SDK or any portion thereof that naturally occurs during normal program execution when used in accordance with and for the purposes described in the SDK documentation or in the course of making unmodified copies of the SDK or SDK documentation as part of the regular back-up of the SDK in accordance with standard industry business practices).
As between Wunderkind and Company, Company is solely responsible for Company’s and its End Users’ use of the SDK, compliance with these Terms and the Policies, and the Company Application. Company shall abide by, and ensure compliance with, all applicable laws in connection with Company’s use of the SDK and its End Users’ use of the Company Application. Company acknowledges and agrees that Company is solely responsible, and that Wunderkind has no responsibility or liability of any kind, for (i) the content, development, operation, sale, support, security or maintenance of Company Application; or (ii) Company’s inability to continue providing any Company Applications (in whole or part) due to the termination or expiration of these Terms and any associated Order Forms. Without limiting the foregoing, Company will be solely responsible for ensuring that the Company Application does not violate or infringe the Intellectual Property Rights of any third party and transitioning End Users off a Company Application when that Company Application is no longer available for any reason.
Prohibited Uses. Company further agrees that Company will not, directly or indirectly (and will require that all End Users do not, directly or indirectly) use the Company Application, the SDK, or any information, data or content accessed or obtained from Wunderkind hereunder:
- For any purpose other than as expressly permitted in these Terms, the Policies, or the Platform Agreement;
In a way that disparages, or in a way that is reasonably likely to allow others to disparage, Wunderkind or its users;
In a way that is deceptive, fraudulent, false, or misleading;
In a way that violates applicable laws or regulations, including:
Illegal activities, such as child pornography, gambling, piracy, violating copyright, trademark or other intellectual property laws;
Intending to exploit minors in any way;
Accessing or authorizing anyone to access the SDK or Platform from an embargoed country as prohibited by the U.S. government;
In a way that violates applicable data protection laws;
In any environment or context requiring fail-safe performance (e.g., emergency medical provisions, hazardous activities) or in which the failure of the Company Application, the access to or use of SDK, or Platform could lead to death, personal injury, or property or environmental damage;
To transmit any content or material that would infringe or violate the Intellectual Property Rights of any party, that is illegal, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, or a violation of applicable law or regulation, including but not limited to anti-spam, export control, privacy, information security, data protection and anti-terrorism laws and regulations and laws governing recording or interception of audio, video or other communications or requiring the consent of subjects of audio and video recordings;
To disrupt, interfere with, or attempt to gain unauthorized access to services, servers, devices, or networks that connect to or which can be accessed via the SDK;
To identify, exploit or publicly disclose any potential security vulnerabilities of the SDK;
To identify, exploit or publicly disclose any potential security vulnerabilities; or
To use the SDK in a way that could create, in Wunderkind’s sole discretion and judgment, an unreasonable privacy or information security risk to End Users or others.
SDK Updates
Wunderkind maintains the right, in its sole discretion, to update, develop, enhance or deprecate all of part of the SDK or the Content (“SDK Modification”). Company acknowledges that Wunderkind has no obligation to ensure that any SDK Modification is compatible with the Company’s Application. In the event Wunderkind makes a material SDK Modification, Wunderkind shall use commercially reasonable efforts to provide Company with prior notice of any such modifications (“SDK Modification Notice”).
Wunderkind shall have no liability to Company in connection with any SDK Modification or any effect an SDK Modification has on the Company Application. Without limiting the foregoing, if an SDK Modification has a materially adverse effect on the Company Application, Company shall notify Wunderkind within thirty (30) days of receipt of the SDK Modification Notice. Wunderkind and Company shall work together in good faith to resolve Company’s objection to the SDK Modification. After this process, if a resolution has not been agreed to within ten (10) calendar days, Company will be given the opportunity to terminate the SDK without penalty or another such resolution as the parties may agree.
Suspension
Wunderkind may immediately limit, suspend, or restrict Company’s access to the SDK in Wunderkind’s sole discretion without prior notice to Company. Wunderkind shall have no liability to Company for any resulting effect in the Company Application arising from such restriction on Company’s access to the SDK.
Termination
Wunderkind and Customer may terminate the SDK and SDK Terms in accordance with the terms of the applicable Order Form.
Upon termination, all licenses granted by Wunderkind herein shall immediately terminate and Customer must (i) cease using the SDK; (ii) remove any use of the SDK from the Company Application; and (iii) delete or destroy all copies in its possession of the SDK and associated documentation of the SDK.
Warranty
Company represents, covenants and warrants that Company will use the SDK only in compliance with the Acceptable Use Policy, as noted above and all applicable laws and regulations. Company hereby agrees to indemnify and hold Wunderkind harmless against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Wunderkind reserves the right to, in its sole discretion, modify or amend the Acceptable Use Policy as required. Company is responsible for all actions taken by Company or its employees, contractors, agents or other individuals authorized by Company to access the SDK (collectively, the “Users”).
Limitation of Liability
The provision of the SDK is experimental and shall not create any obligation for Wunderkind to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop the SDK either to Company or to any other party. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN EITHER THE AGREEMENT OR ANY ORDER FORMS (AS DEFINED IN THE AGREEMENT), Wunderkind’S CUMULATIVE LIABILITY FOR DAMAGES, IF ANY, FOR ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH COMPLAINTS OF PERFORMANCE, BREACH OF THIS ORDER FORM, COMPANY’S USE OF THE SDK OR THE DELIVERY OF THE MESSAGES IS LIMITED TO $1,000. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL Wunderkind OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO A PARTY FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE.
Indemnification
In addition to each party’s indemnification obligations under the Platform Agreement, the Company shall defend, indemnify, and hold harmless Wunderkind, and its officers, directors, employees, agents, contractors, suppliers, and licensors against all costs, expenses, losses, and damages (including reasonable attorneys’ fees and costs) incurred or awarded as a result of or in connection with claims of third parties against Wunderkind based on or arising directly or indirectly out of (i) allegations that the Company Application infringes, violates or otherwise misappropriates any third party patents, trademarks, or copyrights; (ii) a breach by the Company of these Terms, the Platform Agreement, or the Policies; and/or (iii) the Company Application or the Company’s use of the SDK.