SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT

THIS IS A LICENSE AGREEMENT BETWEEN YOU AND SILA INC. BY INDICATING YOUR ACCEPTANCE AS SET FORTH BELOW, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

This License Agreement accompanies the Sila Software Development Kit(s) for the software and related explanatory materials (the “SDK”) and includes any upgrades, modified versions, updates, additions, and copies of the SDK licensed to You by Sila. This copy of the SDK is licensed to You as the end user or to Your employer or another third party authorized to permit Your use of the SDK. You agree that this License Agreement is enforceable like any written negotiated agreement signed by you and that your use of the SDK constitutes acceptance of the Agreement terms. If you do not agree to the terms of this Agreement, do not use this SDK software.

1. DEFINITIONS.

  1. In this License Agreement, SDK means Sample Code, Tools, API Information, documentation, including Documentation in on-line format, and related items.
  2. This License Agreement does not govern use of Sila Products.
  3. Sila Products means Sila’s application programs, technologies and software such as Sila developed plug-ins which are or may be made available under a separate licensing agreement, including any modified versions or upgrades thereof. Only those items placed on your computer by executing the SDK installer and/or otherwise manually downloaded by You are part of this SDK.
  4. Sample Code means software code that Sila has included for You to incorporate into Your application programs.
  5. Tools refer to programs and Utilities that may be included for You to test or compile Your application programs.
  6. Documentation means any related explanatory materials accompanying the SDK.
  7. Trademark means the Sila logo.
  8. Sila means Sila Inc, a Delaware corporation, 960 SW 6th Avenue, Portland, Oregon.
  9. Developer, You and Your refer to any person or entity acquiring or using the SDK under the terms of this License Agreement.

2. ROYALTY-FREE LICENSE. Subject to the restrictions contained in this Section 2, Sila grants to You a nonexclusive, nontransferable, royalty-free license to use the items in the SDK only for the purpose of internal development of application programs designed to function with Sila products.

(a) Under this License Agreement, You may use, modify or merge all or portions of the Sample Code with Your application programs and distribute it only as part of Your products in object code form. Any modified or merged portion of the Sample Code is subject to this License Agreement. You are required to include Sila’s copyright notices on Your application programs except for those programs in which You include a copyright notice reflecting the copyright ownership of Developer in such programs. You may not use Sila’s name, logo or trademarks to market Your products, except as provided in Section 3, below or agreed upon in a separate written agreement with Sila. You may not assign Your rights or obligations granted under this License Agreement without the prior written consent of Sila. Any attempted assignment or transfer without such prior written consent from Sila shall be void and of no effect.

(b) You may not reverse engineer, decompile or disassemble any portion of the SDK. To the extent that local law grants You the right to decompile software in order to obtain information necessary to render the software interoperable with other software, You shall first request to Sila in writing to provide You with the necessary information. Sila has the right to impose reasonable conditions such as a reasonable fee for doing so. Requests for information should be directed to the Sila at the address provided in the SDK or such other address made available on silamoney.com from time to time.

You may make a limited number of copies of the SDK to be used by Your employees or consultants as provided herein, and not for general business purposes, and such employees or consultants shall be subject to the obligations and restrictions in this License Agreement.

3. TRADEMARK LICENSE.

1. Trademark Grant. Sila grants to You a worldwide, non-exclusive, non-transferable, personal right to use the Photoshop connection logo, as identified in the Sila Trademark Database available from the Sila web site (the “Trademark”), pursuant to the terms of this License Agreement.

2. Trademark Usage. You may use the Trademark solely in conjunction with the performance of Your commitments under this License Agreement, described in Section 2, so long as such use also complies with any written agreement between You and Sila. Use of the Trademark does not give You any right, title or interest in the Trademark, other than the license rights specifically granted to You by Sila. You agree not to use the Trademark in any way that will disparage Sila or its products, injure Sila’s reputation for high quality or otherwise diminish or damage Sila’s goodwill in the Trademark or infringe Sila’s intellectual property. You acknowledge the validity of the Trademark and Sila’s sole ownership of the Trademark, and that Sila retains all right, title and interest in and to the Trademark. You recognize the value of the goodwill associated with the Trademark, and acknowledge that such goodwill inures exclusively to the benefit of and belongs to Sila. You shall employ best efforts to use the Trademark in a manner that does not derogate from Sila’s rights in the Trademark and will take no action that will interfere with or diminish Sila’s rights in the Trademark. You agree not to adopt or use a trademark, service mark, or any other designation confusingly similar to the Trademark. Further, You agree to use the Trademark only in connection with products that: (a) meet or exceed all applicable U.S. and foreign labeling and packaging laws and regulations, (b) are advertised in compliance with all applicable U.S. and foreign fair advertising laws and regulations, (c) comply with all other applicable U.S. and foreign laws and regulations, (d) support Sila products if so indicated on packaging and/or advertising materials for Your products, (e) are of a quality and reputation consistent with the high quality of Sila products and services, and (f) are advertised in a manner consistent with industry standards. Upon reasonable request from Sila, You will notify Sila of the locations of your use of the Trademark and furnish Sila with suitable specimens of such use. If Sila so requests, You agree to submit to Sila any uses of the Trademark for Sila’s approval prior to the dissemination of these materials, such approval not to be unreasonably withheld. You agree to undertake such steps as Sila may reasonably request to assist in monitoring and maintaining the quality and form of use of the Trademark. If at any time Sila determines that You are not maintaining adequate quality standards, You shall be considered in breach of this License Agreement and subject to the termination provisions of Section 4. You must immediately remedy any material deficiencies in its use of the Trademark upon reasonable notice from Sila. If Sila provides You with a substitute Trademark, You shall bear all liability for continued use of the previous Trademark.

4. PROPRIETARY RIGHTS. The items contained in the SDK are the intellectual property of Sila and its suppliers and are protected by United States copyright and patent law, international treaty provisions and applicable laws of the country in which it is being used. You agree to protect all copyright and other ownership interests of Sila and/or its suppliers in all items in the SDK supplied under this License Agreement. You agree that all copies of the items in the SDK, reproduced for any reason by You, contain the same copyright notices, and other proprietary notices as appropriate, as appear on or in the master items delivered by Sila in the SDK. Sila and/or its suppliers retain title and ownership of the items in the SDK, the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist. Except as stated above, this License Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect to the items in the SDK.

5. TERM. This License Agreement is effective until terminated. Sila has the right to terminate this License Agreement immediately, without judicial intervention, if You fail to comply with any term herein. Upon any such termination You must remove all full and partial copies of the items in the SDK from your computer and discontinue the use of the items in the SDK.

6. DISCLAIMER OF WARRANTY. Sila licenses the SDK to Developer only on an “AS-IS” basis. Sila makes no representation with respect to the adequacy of any items in the SDK, whether or not used by You in the development of any products, for any particular purpose or with respect to their adequacy to produce any particular result. Sila and its suppliers shall not be liable for loss or damage arising out of this License Agreement or from the distribution or use of Developers products containing portions of the SDK. SILA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF ANY THIRD PARTY RIGHT IN RESPECT OF THE ITEMS IN THE SDK OR ANY SERVICES RELATED TO THE SDK.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to You. You may have rights which vary from state to state or jurisdiction to jurisdiction. The foregoing does not affect or prejudice Your statutory rights. To the extent permissible any implied warranties are limited to ninety (90) days. For further warranty information You may contact Sila’s Customer Support Department.

Sila is under no obligation to provide any support under this License Agreement, including upgrades or future versions of the SDK or any portions thereof, to Developer, end user or to any other party. Sila is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or restricting obligations, warranties and liability as provided in this Section 5, but in no other respects and for no other purpose.

7. LIMITATION OF LIABILITY. Notwithstanding any other provisions of this License Agreement, Sila’s liability to You under this License Agreement shall be limited to the amount paid by You for the SDK.
IN NO EVENT WILL SILA OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES INCLUDING DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, COSTS, FEES OR EXPENSES OF ANY KIND OR NATURE ARISING OUT OF ANY PROVISION OF THIS LICENSE AGREEMENT OR THE USE OR INABILITY TO USE THE ITEMS IN THE SDK, EVEN IF AN SILA REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY PARTY. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitation or exclusion may not apply to You. Nothing contained in this Agreement shall prejudice the statutory rights of any party dealing as a consumer.

8. INDEMNIFICATION. Developer agrees to indemnify, hold harmless, and defend Sila from and against any claims or lawsuits, including attorneys’ fees, that arise or result from the use and distribution of Developer’s products that contains or is based upon any portion of the SDK, provided that Sila gives Developer prompt written notice of any such claim, tenders to Developer the defense or settlement of such a claim at Developer’s expense and cooperates with Developer, at Developer expense, in defending or settling such claim.

9. CHOICE OF LAW. This Agreement will be governed by and construed in accordance with the substantive laws in force: (a) in the State of California, if a license to the Software is obtained when you are in the United States, Canada, or Mexico; or (b) in Japan, if a license to the Software is obtained when you are in Japan, China, Korea, R.O.C, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or (c) the Republic of Ireland, if a license to the Software is obtained when you are in any other jurisdiction not described above. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the courts of the Republic of Ireland, when the law of the Republic of Ireland applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10. U.S. GOVERNMENT REGULATIONS. You agree that any Developer product that includes Sample Code or Programming Language (i) will include in its license agreement a reference to applicable U.S. Government regulations that control licensing of software, and (ii) will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act. In addition, if any part of the Package is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

11. NON-BLOCKING OF SILA DEVELOPMENT. You acknowledge that Sila is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that You may develop based on your license herein. Nothing in this Agreement shall impair, limit or curtail Sila’s right to continue with its development, maintenance and/or distribution of Sila’s technology or products. You agree that you shall not assert in any way any patent owned by You arising out of or in connection with this SDK or modifications made thereto against Sila, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors (collectively, the “Sila Product Users”) for the manufacture, use, import, licensing, offer for sale or sale of any Sila products.

12. OPEN SOURCE SOFTWARE. Notwithstanding anything to the contrary, You are not licensed to (and You agree that You will not) integrate or use this SDK with any Viral Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the SDK in source code form, for the purpose of making derivative works, or at no charge. For the purposes of this Section 6, “Viral Open Source Software” shall mean software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license terms that could require, or condition Your use, modification, or distribution of such software on, the disclosure, distribution, or licensing of any other software in source code form, for the purpose of making derivative works, or at no charge. Any violation of the foregoing provision shall immediately terminate all of Your licenses and other rights to the SDK granted under this Agreement.

13. WAIVER. None of the provisions of this License Agreement shall be deemed to have been waived by any act or acquiescence on the part of Sila, its agents or employees, but only by an instrument in writing signed by an officer of Sila.

14. INTEGRATION. When conflicting language exists between this License Agreement and any other agreement included in the SDK, this License Agreement shall supersede. If either Sila or Developer employs attorneys to enforce any rights arising out of or relating to this License Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees. You acknowledge that You have read this License Agreement, understand it and that it is the complete and exclusive statement of Your agreement with Sila which supersedes any prior agreement, oral or written, between Sila and You with respect to the licensing to You of the SDK. No variation of the terms of this License Agreement will be enforceable against Sila unless Sila gives its express consent, in writing signed by an officer of Sila. The English language version of this Agreement shall be the version used in the event any dispute arises hereunder. All translations of this Agreement are for convenience only and shall not be used by the parties or any court when interpreting or construing this Agreement.