crisp

CRISP WIRELESS

API END USER LICENSE AGREEMENT

This API End User License Agreement (the “Agreement”) governs all access to, and use of, the Crisp Wireless API adRequest and adTrack (the “API Software”).

YOU ACKNOWLEDGE THAT BY ACCESSING, DOWNLOADING OR USING THE API SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF AN INDIVIDUAL IS ACCESSING THE API SOFTWARE ON BEHALF OF A BUSINESS ENTITY, BY DOING SO, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE LEGAL CAPACITY AND AUTHORITY TO BIND SUCH BUSINESS ENTITY TO THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT.  IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU MAY NOT USE THE API SOFTWARE.

1. Grant of License
Subject to the terms and conditions of this Agreement, Crisp Wireless hereby grants you a non-exclusive, revocable, non-transferable limited license to install and use the API Software. The API Software may be used only for your own internal business use and not for resale or in the operation of a service bureau or for the benefit of any other person or entity without the prior written consent of Crisp Wireless.  The license granted under this Agreement may be for limited usage of the API Software, as determined by Crisp Wireless.  You may only expand upon such limited usage by entering into another agreement with Crisp Wireless governing such expanded usage.  All rights not expressly granted to you herein are reserved by Crisp Wireless. 

2. License Restrictions
In no event may you modify or create derivative works based on the API Software or any part thereof and, except as may be permitted under applicable law, you may not reverse engineer, decompile, translate, adapt, or disassemble the API Software. You assume sole responsibility for the installation, use, and results obtained from use, of the API Software.  You shall be liable, without limitation, for all acts or omissions of persons or entities obtaining access through your installation, use or access to the API Software. 

3. Ownership
Except for the limited rights set forth in Section 1, you do not acquire any interest in the API Software by virtue of entering into this Agreement. Without limitation, Crisp Wireless owns, and shall continue to own, all intellectual property rights in and to the API Software.  Any improvements, enhancements or modifications to the API Software created, suggested or requested by you, including any and all intellectual property rights therein (collectively, "Improvements"), shall be automatically assigned to, and owned by, Crisp Wireless.  To the extent any Improvements are not automatically assigned to Crisp Wireless, you agree to take all reasonable measures, at Crisp Wireless' expense, to perfect such rights in Crisp Wireless.  You shall take no position contrary to the ownership rights set forth herein.  You will not remove any copyright, trademark or patent notices that appear on or in the code of the API Software.

4. Advertising Content and Use of the API Software
You are solely responsible for the content of any materials or information transmitted, accessed or received through the API Software.  You may not use the API Software in connection with any content, information or service that is fraudulent, misleading, deceptive, obscene, violates the rights of any third party or otherwise violates any applicable law, rule, regulation or agreement. While Crisp Wireless is under no obligation to monitor your use of the API Software, Crisp Wireless reserves the right to do so.  Crisp Wireless may block, remove or restrict access to the API Software without notice if Crisp Wireless, in its sole discretion, determines that you have violated the terms of this Agreement or that your use of the API Software may otherwise expose Crisp Wireless or other users to harm or liability. 

5. Termination
This Agreement is effective until it is terminated. Except as otherwise set forth in writing by Crisp Wireless, you may terminate this Agreement at any time by destroying or returning to Crisp Wireless all copies of the API Software in your possession or under your control. Except as otherwise set forth in writing by Crisp Wireless, Crisp Wireless may terminate this Agreement for any reason, including but not limited to, if Crisp Wireless finds that you have violated any of the terms of this Agreement. Upon notification of termination, you agree to destroy or return to Crisp Wireless all copies of the API Software and to cease all use of the API Software.

6. Confidentiality
You acknowledge that the API Software contains proprietary trade secrets of Crisp Wireless and you hereby agree to maintain the confidentiality of the API Software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. You agree to reasonably communicate the terms and conditions of this Agreement to those persons employed by you who come into contact with the API Software, and to use best efforts to ensure their compliance with such terms and conditions. 

7. Privacy and Data
The API Software may enable you to collect, monitor or use data on mobile devices.  You agree to comply with all applicable laws, rules, regulations and industry best practices regarding privacy in every jurisdiction in which you operate or in which the API Software is used to display content or collect data, including but not limiting to, making all required disclosures to end users conspicuously and prominently prior to the collection of any data.  Crisp Wireless may remotely monitor your usage of the API Software to ensure compliance with this Agreement. 

Crisp Wireless does not automatically collect any personally identifiable information from end users (“PII”) in connection with your use of the API Software.  Crisp Wireless does collect aggregate end user data, usage data, contextual data and similar data in connection with your use of the API Software that does not identify any one person (“Aggregate Data”).  As between you and Crisp Wireless, you shall own all data collected by you in connection with your use of the API Software.  However, you hereby grant Crisp Wireless a perpetual, royalty-free, worldwide license to use the Aggregate Data, provided that Crisp Wireless does not specifically identify you in connection with the public use of any specific Aggregate Data. 

8. Limited Warranty
Crisp Wireless warrants for a period of thirty (30) days after you first access the API Software that it will operate substantially in accordance with its applicable documentation. Should the API Software not so operate, your exclusive remedy, and Crisp Wireless' sole obligation under this warranty, shall be, at Crisp Wireless' sole discretion, correction of the defect, delivery of replacement API Software or termination of this Agreement. 

9. Export Restrictions
You agree to comply fully with all relevant laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security (the "U.S. Export Controls"). Without limiting the generality of the foregoing, you expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer the API Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. Export Controls.

10.  Disclaimer
EXCEPT AS SET FORTH IN THIS AGREEMENT, THE API SOFTWARE IS PROVIDED "AS IS" AND CRISP WIRELESS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE API SOFTWARE. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CRISP WIRELESS DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CRISP WIRELESS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE API SOFTWARE WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR FREE, THAT ALL DEFECTS WILL BE CORRECTED, OR THAT THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CRISP WIRELESS SHALL NOT BE LIABLE FOR THE USE OF THE API SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE CONTENT OF ANY INFORMATION OR DATA DELIVERED, ACCESSED OR COLLECTED IN CONNECTION WITH USE OF THE API SOFTWARE BY ANY PARTY. IN NO EVENT WILL CRISP WIRELESS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR OTHER CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

If any part of these warranty disclaimers or limitations of liability is found to be invalid or unenforceable for any reason or if Crisp Wireless is otherwise found to be liable to you in any manner, then Crisp Wireless’ aggregate liability for all claims under such circumstances for all liabilities, shall not exceed the greater of: (i) the amount paid by you for your use of the API Software during the prior six (6) months or (ii) one hundred dollars ($100).

11. Changes
We may change the features or function of the API Software at any time without notice. In addition, this Agreement may be changed at any time without prior notice. We will make such changes by sending you a notification of such changes. Your continued access of the API Software after notice of such changes conclusively demonstrates your acceptance of those changes.

12. Indemnification
Crisp Wireless agrees to indemnify, defend and hold harmless you from and against any and all liability, claims, causes of action, suits, damages and expenses, including reasonable attorneys' fees, (collectively, "Losses") to the extent that such is based upon any third party claim that the API Software, as delivered by Crisp Wireless without alteration, directly infringes upon any third party U.S. copyright, U.S. trademark, or U.S. patent that has been issued as of the date the API Software was first accessed by you.  This indemnification obligation shall not apply to the extent any Losses arise from: (a) any use of the API Software that is in breach of this Agreement or contrary to any instructions provided by Crisp Wireless to you; (b) the combination, operation, or use of the API Software with any product or service not provided by Crisp Wireless; or (c) modification of the API Software by any party other than Crisp Wireless.  If the API Software should become the subject of any trademark, patent or copyright infringement claim subject to indemnification as set forth above, or Crisp Wireless reasonably believes that such event is likely to occur, Crisp Wireless, at its expense and discretion, will either: (i) secure for you the right to continue using the API Software; (ii) replace or modify the API Software so as to make it noninfringing; or (iii) if Crisp Wireless determines in its sole discretion that it is not commercially practicable for Crisp Wireless to achieve (i) or (ii) above, Crisp Wireless will have the right to terminate this Agreement immediately.  The foregoing states the entire liability of Crisp Wireless, and your sole and exclusive remedy, with respect to infringements of any trademarks, patents or copyrights by the API Software.

You agree to indemnify, defend and hold Crisp Wireless and its representatives and agents harmless from and against any and all Losses arising from, or related to: (i) any breach by you of this Agreement, (ii) the materials or information transmitted, accessed or received by you in connection with the API Software or (iii) a violation by you of any applicable law, rule, regulation, agreement or obligation.

13. Governing Law
The laws of the State of New York shall govern this Agreement. YOU HEREBY EXPRESSLY CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR ALL MATTERS ARISING IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS OR USE OF THE API SOFTWARE. Any claims asserted by you in connection with the API Software must be asserted in writing to Crisp Wireless within one (1) year of the date such claim first arose, or such claim is forever waived by you. Each claim shall be adjudicated individually, and you agree not to combine your claim with the claim of any third party.

14. General
No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any rights under this Agreement.  No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.  The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement.  The prevailing party shall be entitled to collect its reasonable attorneys fees, costs and expenses in any action brought to enforce rights hereunder.  If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement.  The provisions of Sections 2, 3, 6, 7, 9, 10, 12, 13 and 14 shall survive the expiration or termination of this Agreement regardless of the reason or reasons therefore.  This Agreement represents the entire agreement between the parties on the subject matter herein and supersedes any prior agreements or understandings, whether oral or written.

15. Contact Information
Should you have any questions regarding this Agreement, you may contact us at:

api-support@crispwireless.com

Effective date: September 1, 2009