Updated May 22, 2020

This Developer License Agreement (“Developer License” or “Agreement”) is entered into by OpenFin Inc. (“OpenFin” or “we”) and you.

By downloading OpenFin OS or using OpenFin Technology, you agree to be bound by these terms. You need a Developer License to download, use, test, or build with any OpenFin Technology. You will need a Community or Enterprise License if you operate an application in a Production Environment that uses the OpenFin Technology. If you sign up for a Community or Enterprise License with OpenFin, then those terms supersede this Developer License.

OpenFin may update these terms from time to time without notice to you. By continuing to use OpenFin Technology, you agree to be bound by any changes in these terms.

The sections below titled “Binding Arbitration” and “Class Action Waiver” affect your legal rights under this Agreement. Please read those carefully.

1. Definitions.

“Application” means any software application that is owned or operated by you that uses the OpenFin OS, including all Intellectual Property Rights in that application and any Application Framework, but specifically excluding the OpenFin Technology.

“Application Framework” means any Application that is a software layer that sits between a Third-Party Application and the OpenFin OS.

“End Users” means the end users of the Applications.

“Intellectual Property Rights” means all worldwide rights in, arising from, or associated with any patents or patent applications; trade secrets and other proprietary information which derives independent economic value from not being generally known to the public; all copyrights, copyrights registrations, and applications for those rights; all trade names, corporate names, logos, slogans, trade dress, trademarks, service marks, and trademark and service mark registrations and applications and all goodwill associated therewith; moral rights and rights of attribution; rights of publicity; and any similar, corresponding, or equivalent rights to any of the foregoing.

“OpenFin OS” means the OpenFin operating system software and its associated runtime version management software. OpenFin OS does not include embedded controls and plug-ins provided by OpenFin.

“OpenFin Technology” means OpenFin OS, any informational materials (including any technical or other specifications and instructions) provided by OpenFin to you, and any modifications, improvements, or derivative works, together with all associated Property Rights.

“Production Environment” means a software environment that is accessed by end users of an application and that is used for more than testing of or feedback for that application.

“Third-Party Application” means any software application that is owned or operated by a third party that relies on an Application Framework.

2. OpenFin OS License. Subject to the terms and conditions of this Developer License, OpenFin grants to you a limited, royalty-free, non-exclusive, non-transferable, worldwide license to distribute OpenFin OS to internal or external desktop computers solely for the purposes of building and testing Applications for your own internal business or personal purposes, on a non-commercial basis. You will need a Community or Enterprise License if you operate an application in a Production Environment that uses on OpenFin Technology. You are responsible for any and all use of OpenFin OS by your employees, contractors, or agents (“Representatives”) and that such use complies with the terms of this Agreement. You shall remain liable for any breach of this Agreement by your Representatives.

OpenFin reserves the right to change, suspend, deprecate, deny, limit, or disable access to the OpenFin Technology, or any part thereof, at any time without notice.

3. Support Trials

OpenFin may, at its sole discretion, offer a free trial of its development support services to entities for a limited period of time (“Free Trial”). If you are on a Free Trial, you may cancel at any time until the last day of your Free Trial by sending an e-mail to info@openfin.co. If you or OpenFin cancel your Free Trial, you acknowledge and agree that we may retain information in accordance with our Privacy Policy. If you do not cancel your Free Trial, your Free Trial will end in thirty (30) days. If you’d like to continue using the OpenFin Technology after the termination of your Free Trial, you may contact info@openfin.co to discuss how to obtain a new license.

At any time and without notice, OpenFin reserves the right to (a) modify the terms and conditions of any Free Trial offer, (b) cancel any Free Trial offer, or (c) cancel any Free Trial at any time.

4. Your Responsibilities.

You agree that:

(a) You will access and use the OpenFin Technology solely in accordance with the terms of this Agreement.

(b) You will not access or use the OpenFin Technology in any manner, nor will you create an Application, that:

(i) violates any provision of this Agreement;
(ii) is prohibited by any applicable law, regulation, or judicial ruling (including, but not limited to, any applicable export controls or restrictions or laws regarding the rights of any individual or entity);
(iii) promotes or facilitates illegal activity;
(iv) violates, infringes, or misappropriates any Intellectual Property Rights of any third party or of OpenFin; or
(v) uses any malware, harmful code, or otherwise interferes with, disrupts, damages, or accesses in an unauthorized manner any OpenFin Technology or any other software, hardware, data, systems, networks, or other property or services of OpenFin or any third party.

(c) You will not (and will not allow others to) copy, modify, decompile, reverse engineer, or create a derivative work of all or any portion of the OpenFin Technology except as may be required by law, or as otherwise explicitly set forth in this Agreement.

(d) You will not package, refer to, call upon, or link to the OpenFin Technology in an Application Framework without providing conspicuous notice to users of your Application Framework about the reliance on OpenFin OS and the need for them to obtain an appropriate license from OpenFin to access and use OpenFin OS.

(e) You will not alter, obscure, or remove any copyright, trademark, or other proprietary rights notices that may be affixed to or contained in the OpenFin Technology.

(f) You will comply with all applicable laws, rules and regulations (including, but not limited to, General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and any applicable privacy and/or consumer protection legislation). You will also comply with your own public facing privacy policies and any other Application Terms of Use, in connection with the provision of your Application(s) to End Users.

(g) You are solely responsible and liable for Applications owned or operated by you. OpenFin has no liability to you or any third party with respect to your Applications.

5. Protecting Intellectual Property.

(a) Subject to OpenFin’s rights to the OpenFin Technology, you own all right, title, and interest in and to the Applications. Applications do not include any OpenFin Technology. You are solely responsible for the Applications you provide to End Users. OpenFin has no responsibility or liability to End Users in connection with the Applications.

(b) OpenFin (or its licensors) retains all rights, title, and interest in the OpenFin Technology. If any of those rights vest with you, you irrevocably assign all rights, title, and interest to OpenFin.

(c) Each of you and OpenFin agree to take all further actions, and execute all filings or assignments, as may be reasonably necessary to effectuate the provisions set forth in this section.

6. Costs; Updates. OpenFin is not responsible for any costs, expenses, or other liabilities that you may incur in connection with your use of the OpenFin Technology, development testing of your Application, or otherwise. OpenFin may update OpenFin Technology from time to time, with or without notice to you.

7. Termination. At OpenFin’s sole discretion, OpenFin may terminate your Developer License and cease provision of the OpenFin Technology with or without notice, effective immediately, for any reason or no reason at all. Upon the expiration or termination of this Agreement all rights and licenses granted under this Agreement will immediately terminate.

8. Disclaimer of Warranties; Limitation of Liability.
THE OPENFIN TECHNOLOGY IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOUR ACCESS TO AND USE OF THE OPENFIN TECHNOLOGY, AND ANY OTHER ACTIONS TAKEN BY YOU IN CONNECTION WITH YOUR USE AND RECEIPT OF THE OPENFIN TECHNOLOGY ARE DONE ENTIRELY AT YOUR OWN RISK.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND REGARDLESS OF THE FORM OF ACTION, OPENFIN SHALL HAVE NO LIABILITY WHATSOEVER FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO THE OPENFIN TECHNOLOGY, YOUR USE THEREOF, OR OTHERWISE ARISING UNDER THIS DEVELOPER LICENSE, EVEN IF OPENFIN HAS BEEN ADVISED OF, OR MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES OR LOSSES.

9. Indemnification. To the maximum extent permitted by law, you agree to defend, indemnify, and hold harmless OpenFin, its affiliates, and their respective directors, officers, employees, and agents, from and against any and all third-party claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) your breach of this Developer License; (b) your use or misuse of the OpenFin Technology; (c) your negligence or willful misconduct; and/or (d) any of your Applications.

10. Binding Arbitration. In the event of a dispute arising under or relating to the OpenFin Technology, your use thereof, or otherwise arising under this Agreement (each, a “Dispute”), either party may elect to finally and exclusively resolve the Dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All Disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 13 below, nothing in this Agreement will prevent OpenFin from seeking injunctive relief in any court of competent jurisdiction as necessary to protect its proprietary interests.

11. Class Action Waiver. You agree that any arbitration or proceeding shall be limited to the Dispute between OpenFin and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST OPENFIN ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

12. General.

(a) If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept this Agreement on behalf of your employer or other entity.

(b) This Developer License shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of law principles. For all purposes of this Developer License, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York County, New York.

(c) Nothing in this Agreement, or in the nature of your access and use of the OpenFin Technology, shall create or is intended to create a joint-venture, partnership, or agency relationship between you and OpenFin.

(d) You may not assign or transfer this Agreement or any of your rights or obligations hereunder, absent the prior written consent of OpenFin.

(e) You agree that if OpenFin does not exercise or enforce any legal right or remedy contained in this Agreement, this will not be taken to be a formal waiver of OpenFin’s rights and that those rights or remedies will still be available to OpenFin.

(f) This Agreement constitutes the complete understanding between you and OpenFin with respect to the subject matter contained herein, and supersedes all prior written or oral communications, understandings, and agreements.

(g) If any provision of this Agreement is deemed to be illegal, invalid, or unenforceable, then that provision shall be removed and the remaining terms will continue to be valid and enforceable.

Developer License

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