MIMIK TECHNOLOGY INC -- DEVELOPER AGREEMENT
last modified: May 4, 2022
Table of Contents
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, INCLUDING ANY LINKED TERMS REFERENCED BELOW, WHICH, BY REFERENCE, ARE PART OF THIS DEVELOPMENT AGREEMENT.
By registering to use any of the mimik software, applications technology, and services to which Developer has access (“Solutions”) or accessing any of the Solutions, Developer acknowledges and agrees that Developer has read all of the terms and conditions of this Agreement and this Agreement forms a binding agreement between Developer and mimik. If Developer is an individual representing an entity, Developer represents and warrants that Developer possesses the appropriate authority to accept this Agreement on behalf of such entity.
This Agreement is effective as of the date that Developer first accesses any of the Solutions from mimik’s developers portal (the “Effective Date”).
We reserve the right to change this Agreement at any time, at our sole discretion, by providing notice that this Agreement has been modified. We may provide notice by sending an email, posting a notice via the Site, posting the revised Agreement on the Site, and revising the date at the top of this Agreement, or another form of notice. Any changes to this Agreement will be effective immediately, and Developer’s continued use of any of the Solutions following the notice will constitute Developer’s acceptance of the changes.
1. Evaluation License. Subject to the terms and conditions of this Agreement mimik grants to Developer, during the 60-day period commencing upon the Effective Date (the “Evaluation Period”), a non-exclusive, non-transferable, revocable, and limited right and license, to use the Solutions solely to evaluate the Solutions (collectively, the “Evaluation License”).
2. Commercial Development License. Subject to the terms and conditions of this Agreement and Developer payment of all fees applicable to its use of the Solutions, mimik grants to Developer, during the 24 month period commencing upon the Effective Date (or, if applicable, the close of the Evaluation Period) (the “Commercial Period”), a non-exclusive, non-transferable, and limited right and license, to use the Solutions to develop products and services. In the event that Developer elects to market, promote, offer to sell, and sell any products or services utilizing the Solutions (or any portion thereof) to individuals or entities, Developer must first enter into mimik’s Commercial Distribution License.
OWNERSHIP AND RESTRICTIONS
1. Ownership. As between the parties and subject to Section 1, mimik owns all right, title, and interest in and to the Solutions (and any improvements or modifications to the Solutions), any anonymous and aggregate statistics regarding the use of any of the Solutions by Developer (the “Solutions Data”), Feedback (as defined below), and any and all patent rights, copyrights, moral rights, trademark rights, trade secret rights, and any other form of intellectual property or proprietary rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively, the “Intellectual Property Rights”) embodied in or related to the foregoing. mimik reserves all rights not expressly granted in this Agreement, and no licenses are granted by mimik to Developer under this Agreement, whether by implication, estoppel, or otherwise, except as expressly set forth in this Agreement.
2. Restrictions. Except as expressly authorized by this Agreement, Developer may not do any of the following (a) modify, copy, disclose, alter, translate, or create derivative works of any of the Solutions, (b) license, sub-license, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of any of the Solutions, (c) use any of the Solutions, or allow the transfer, transmission, export, or re-export any of the Solutions in violation of any export control laws, regulations, rules, orders and other requirements of the U.S. and other governmental authorities that have jurisdiction, including, but not limited to, the U.S. Export Administration Regulations (collectively, the “Export Control Laws”), (d) decompile, disassemble, decode, or reverse engineer the software component of the Solutions, translate the Solutions or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the Solutions or reduce the Solutions by any other means to a human-perceivable form, (e) bypass, delete, or disable any copy protection mechanisms or any security mechanisms within the Solutions, (f) interfere with or disrupt the integrity or performance of the Solutions, (g) remove, alter, or obscure any proprietary notices in or on the Solutions, including copyright notices, and (h) cause or permit any individual or entity to do any of the foregoing.
Subject to the terms and conditions of this Agreement, mimik will use commercially reasonable efforts to provide support services with respect to the Solutions as further described at https://www.mimik.com (“Solutions Support”). The Solutions Support may be modified from time-to-time by mimik, and the Solutions Support is incorporated into this Agreement by reference.
REPRESENTATIONS, WARRANTIES, AND DISCLAIMER
1. General Representations and Warranties. Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement, (c) this Agreement is valid, binding and enforceable against it in accordance with its terms, (d) neither the execution of this Agreement nor the performance of its obligations under the Agreement, will conflict with or result in a breach of or constitute a default under, any provision of the articles of incorporation, business license, by-laws or articles of association (or other such charter documents) of such party or any applicable law or any contract or agreement to which it is a party or is subject, and (e) it will fulfill all of its obligations and exercise all of its right under this Agreement in accordance with all applicable laws, orders, and regulations of any governmental authority with jurisdiction over its activities in connection with this Agreement (including, all Export Control Laws and all privacy and data security laws).
2. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 4.1, MIMIK DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT AND THE SOLUTIONS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT MIMIK KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
1. mimik’s Obligations. mimik, at its sole expense, will defend Developer from and against any and all third-party claims, suits, actions, or proceedings (“Claims”), and indemnify Developer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by mimik resulting from or arising in connection with a Solution (solely in the form made available to Developer) infringing any Intellectual Property Rights of any third-party. mimik’s indemnification obligations hereunder do not extend to Claims arising from or relating to (a) any negligent or willful misconduct by Developer, (b) any use of the Solutions with any equipment, software, data, or any other materials where the infringement would not have occurred but for such combination, (c) any modification to the Solutions where the infringement would not have occurred but for such modification, or (d) any use of any of the Solutions in a manner contrary to the terms of this Agreement. mimik’s obligations pursuant to this Section 5.1 are conditioned upon Developer (i) giving prompt notice of the Claim to mimik, (ii) granting sole control of the defense (including, but not limited to, the sole right to select and use counsel of its own choosing) and settlement of the Claim to mimik, and (iii) providing reasonable cooperation to mimik and, at mimik’s request and expense, assistance in the defense or settlement of the Claim.
2. Developer Obligations. Developer, at its sole expense, will defend mimik and its directors, officers, employees, consultants, and agents from and against any and all Claims, and indemnify mimik and its directors, officers, employees, consultants, and agents from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, and disbursements) resulting from or arising in connection with (a) any negligence or willful misconduct by Developer, (b) any alleged breach or breach by Developer of this Agreement (including, but not limited to, any alleged breach or breach of any of Developer’s representations or warranties under this Agreement), or (c) any products or services provided by Developer.
LIMITATION OF LIABILITY
1. Consequential Damages Waiver. MIMIK WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
2. Liability Cap. MIMIK’S ENTIRE LIABILITY TO DEVELOPER OR ANY OTHER INDIVIDUAL OR ENTITY WILL NOT EXCEED THE FEES, IF ANY, PAID TO MIMIK FOR DEVELOPER’S RIGHTS WITH RESPECT TO THE SOLUTIONS DURING THE JUST-COMPLETED 12 MONTH PERIOD (AS MEASURED FROM THE DATE THE CLAIM AROSE). FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF THE TERMS OR CONDITIONS OF THE SERVICE LEVEL STANDARDS ARE THE CREDITS SET FORTH IN THE SERVICE LEVEL STANDARDS.
3. Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 6 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Each party agrees not to disclose the terms and conditions of this Agreement, or any information related to this Agreement that the receiving party knows or should know, given the facts and circumstances surrounding the disclosure, is the confidential information of the other party to any third-party; provided, however, each party may disclose such information (a) in confidence to such party’s legal counsel, accountants, banks, financing sources, and their advisor, or (b) in confidence in connection with an actual or proposed merger, acquisition, initial public offering, or similar transaction. The confidentiality and non-disclosure obligations under this Section 7 will not apply to the extent that a party is required to disclose information by applicable law, regulation, rule including the rule of a stock exchange or automated quotation system, or order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities (in each case as determined by the party’s legal counsel); provided, however, that the party will provide advanced written notice of such disclosure to the other party, consult with the other party with respect to such disclosure, and provide the other party sufficient opportunity to object to any such disclosure or to request confidential treatment or a protective order (if applicable).
TERM AND TERMINATION
Unless terminated earlier as permitted below, this Agreement will commence upon the Effective Date and continue until the end of the Evaluation Period or, if be applicable, the end of the Commercial Terms. Either party may terminate this Agreement for cause if the other party breaches this Agreement and does not remedy such breach within the 10-day period commencing upon such other party’s receipt of written notice of such breach. Further, mimik may terminate this Agreement, for convenience, with 30 days advance written notice to Developer. Upon any expiration or termination of this Agreement (a) all rights and licenses granted to Developer under this Agreement will immediately cease, and (b) each party will promptly provide the other party with all confidential information of such other party then in its possession or destroy all copies of such other party’s confidential information, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, this sentence and Sections 2 (Ownership and Restrictions), 4.2 (Disclaimer), 5 (Indemnification Obligations), 6 (Limitation of Liability), 7 (Confidentiality), and 9 (General Provisions) will survive any termination or expiration of this Agreement.
1. Governing Law and Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of California and the United States without regard to its conflict of laws principles that would require the application of the laws of another jurisdiction. If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement. The state or federal court in Santa Clara County, California, will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Distributor will not commence or prosecute any suit, proceeding or claim to enforce any provision of this Agreement, or otherwise arising under or by reason of this Agreement, other than in the state courts located in Santa Clara County, California or in the United States federal court which has jurisdiction in such county.
2. Audits. During the term of this Agreement and for two years thereafter, mimik and/or an independent auditor on behalf of mimik will have the right to audit Developer’s books and records, no more than once every calendar year, to ensure Developer’s compliance with the terms and conditions of this Agreement.
3. Remedies. In addition to any other legal and equitable remedies that may be available, mimik will be entitled to seek and obtain injunctive relief against any breach or threatened breach by Developer of this Agreement, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
4. Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner, or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
5. Assignment. Developer will not assign, delegate, or transfer (by sale, merger, operation of law, or otherwise) this Agreement or any right, title, interest, or obligation hereunder without the prior written consent of mimik. Any attempted or purported assignment, delegation, or transfer in violation of the foregoing will be null and void and without effect. mimik may assign this Agreement upon written notice to Developer. This Agreement will be binding and inure to the benefit of such assignees, transferees, and other successors in the interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of this Agreement.
6. Amendments and Waivers. No modification, addition, or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
7. Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments, or other feedback provided by Developer to mimik with respect to any of the Solutions or mimik (collectively, “Feedback”) will constitute confidential information of mimik. Further, mimik will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
8. Publicity and Press Release. Developer consent to mimik’s use of Developer’s name and logo on any of the Sites and mimik’s publicly available printed materials, identifying Developer as a user of the Solutions.
9. Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable, in whole or in part, to any cause beyond its reasonable control, including but not limited to acts of God (e.g., fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by mimik to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third-party.
10. Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
11. Electronic Communications. mimik may choose to electronically deliver all communications with Developer, which may include email to the email address Developer provides to mimik. mimik’s electronic communications to Developer may transmit or convey information about action taken on Developer’s request, portions of Developer’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Developer agrees to do business electronically with mimik and to receive all current and future notices, disclosures, communications, and information electronically and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt, as evidenced by such email.