Atheer Developer Portal Terms of Service

This agreement is between you, the party accepting this agreement and us, Atheer Labs, Inc. (“we,” “us”, “ours,” “Atheer”) and governs your use of the content and services offered on the Atheer Developer Portal (“Services”). This agreement consists of the terms below, terms incorporated by reference, and the Privacy Policy.

Last updated: November 1, 2013

1. USE OF DEVELOPER PORTAL

1.1 Subject to the terms of this agreement, we grant you the right to access and use the Developer Portal and the Services offered thereon as described in this agreement. You may not: reverse engineer, decompile, disassemble or work around technical limitations in the Services, except where applicable law permits it despite this limitation; disable, tamper with or otherwise attempt to circumvent any mechanism that limits your use of the Services; rent, lease, lend, resell, transfer, or sublicense any Services to or for third parties, except as explicitly permitted herein or in license terms that accompany any Services component; use the Services for any purpose that is unlawful or prohibited by this agreement; use the Services in any manner that could damage, disable, overburden, or impair any Atheer services, or the network(s) connected to any Atheer services, or interfere with any other party’s use and enjoyment of any Services. We may make changes to the Services from time to time, including: the availability of files, content, software, and any other features; how long, how much or how often any given item may be used.

1.2 All Atheer software (including the Atheer SDK) is the copyrighted works of Atheer or its suppliers. Atheer and its suppliers retain all rights, title, and interest in and to Atheer software, including all intellectual property rights therein.

1.3 Download, access and use of the Atheer SDK software is subject to the SDK Terms.

1.4 You may use software marked as “sample” or “example” that we make available on the Developer Portal solely to design, develop, and test your programs to run on Atheer products and services.

1.5 You are solely responsible for any third party software that you install or connect with any Service. You may only install or use any third party software with any Service in a way that does not subject our intellectual property or technology to any terms governing such software. We are not a party to and are not bound by any terms governing your use of any third party software. We do not grant any licenses or rights, express or implied, to such third party software, subject to the foregoing:

Open Source code accessible through the Developer Portal that is marked for download under an open source license is provided to you for use under those terms. The Service may link to or reference scripts or code. Those third party scripts or code are licensed to you by third party licensors, not by Atheer.

2. ATHEER CONTENT.

All Atheer content (including but not limited to written materials, files, video, audio, and other content) (“Atheer”) is the copyrighted work of Atheer or its suppliers. You may make a reasonable number of copies of the Atheer Content for your internal use in designing, developing, and testing your software, products and services that is made available to you on the Developer Portal without a license agreement. You must preserve the copyright notice in all copies of the Atheer Content and ensure that both the copyright notice and this permission notice appear in those copies.

3. YOUR DATA.

3.1 “Your Data” means any content or other data, including all text, sound, software, or image files that are provided to us by, or on behalf of, you through your use of the Developer Services for use by you or your authorized users. Your Data does not include submissions or any other Content or data that you submit to the Developer Portal or otherwise provide via the Developer Services for public access. We treat Your Data that contain personally identifiable information in accordance with our Privacy Policy. You are solely responsible for your Your Data. You must have, and you hereby grant us, sufficient rights to use and distribute Your Data (including Your Data sourced from third parties) necessary for us to provide you the Developer Services without violating the rights of any third party, or otherwise obligating Atheer to you or to any third party. We do not accept any additional obligations that may apply to Your Data.

3.2 Except for software and Content we license to you, as between the parties, you retain all right, title and interest in and to Your Data. We acquire no rights in Your Data other than as described in this Section 3.

3.3 We will use Your Data only to provide you the Developer Services and to improve our products and services. This use may include troubleshooting to prevent, find, and fix problems with the operation of the Developer Services and ensuring compliance with this agreement. It may also include improving features, and for finding and protecting against threats to users. We may use usage patterns, trends, and other statistical data derived from Your Data to provide, operate, maintain, and improve our products and services.

3.4 You may delete your Your Data at any time. If you terminate your account we may delete Your Data immediately without any retention period. We have no additional obligation to continue to hold, export or return Your Data and have no liability whatsoever for deletion of Your Data pursuant to this agreement. We will not disclose Your Data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as you direct or unless required by law. We will ask any third party demanding access to your Your Data to contact you directly using your basic contact information. We will use commercially reasonable efforts to notify you in advance of a compelled disclosure unless legally prohibited. You are responsible for responding to requests by a third party regarding your use of Services, such as a request to take down content under the Digital Millennium Copyright Act.

3.5 We may hire other companies to provide limited services on our behalf, such as customer support. Any such subcontractors will be permitted to obtain Your Data only to deliver the services we have retained them to provide. We remain responsible for our subcontractors’ compliance with the obligations set forth in this agreement. We will comply with all laws applicable to our provision of the Services, including applicable security breach notification laws, but not including any laws applicable to you or your industry that are not generally applicable to information technology services providers. You will comply with all laws applicable to your Your Data, and use of the Services, including any laws applicable to you or your industry.

4. ACCOUNTS, CONDUCT, AND FEEDBACK.

4.1 You must complete the registration process by providing us with current, complete and accurate information. You may not select an account user name or identifier that impersonates someone else, is or may be illegal, or may be protected by trademark or other proprietary rights, is vulgar or offensive or may cause confusion. We reserve the right to reject and/or reassign these user names and Service identifiers in our sole discretion.

4.2 If an account was created within the scope of employment or otherwise as an agent of another party, then that party is the account owner and is bound by this agreement. You are responsible for: any and all activities that occur under your account; maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services; and promptly notifying our customer support team about any possible misuse of your accounts or authentication credentials, or any security incident related to the Services.

4.3 We have no obligation to monitor the content and communications of third parties on the Services; however, we reserve the right to review and remove any such materials posted to the Developer Portal in our sole discretion. Third parties that participate on the Services are not authorized Atheer spokespersons, and their views do not necessarily reflect those of Atheer.

4.4 We do not claim ownership of any comments, suggestions, feedback, posts, or other content provided to us in connection with the Services (“Submission”) unless otherwise agreed to by the parties. However, by providing a Submission, you are irrevocably granting Atheer and its affiliated companies the right to make, use, modify, distribute and otherwise commercialize the Submission in any way and for any purpose (including by granting the general public the right to use your Submissions in accordance with this agreement, which may change over time). For Submissions provided to the Developer Portal you further grant the right to publish specific identifying information detailed in the Privacy Policy in connection with your Submission. These rights are granted under all applicable intellectual property rights you own or control. No compensation will be paid with respect to the use of your Submissions. Atheer is under no obligation to post or use any Submission, and Atheer may remove any Submission at any time. By providing a Submission you warrant that you own or otherwise control all of the rights to your Submission and that your Submission is not subject to any rights of a third party (including any personality or publicity rights of any person).

4.5 Elements of the Services may be accessible to you on an invitation only basis, for example as part of a program for using pre-release products and providing feedback to us. Those Services and your feedback, suggestions, data, analysis relating thereto, are confidential information of Atheer. You may not disclose this confidential information to any third party for a period of five years. This restriction does not apply to any information that is or becomes publicly available without a breach of this restriction, was lawfully known to the receiver of the information without an obligation to keep it confidential, is received from another source who can disclose it lawfully and without an obligation to keep it confidential, or is independently developed. You may disclose this confidential information if required to comply with a court order or other government demand that has the force of law. Before doing so, you must seek the highest level of protection available and, when possible, give us enough prior notice to provide a reasonable chance to seek a protective order.

5. TERM, TERMINATION, AND SUSPENSION.

5.1 You may terminate this agreement at any time by notifying us.

5.2 We may suspend your use of the Services if: (1) reasonably needed to prevent unauthorized access to Your Data; or (2) you otherwise violate this agreement. We will attempt to suspend access to the minimum necessary part of the Services while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate this agreement and delete your Your Data without any retention period.

5.3 We may suspend or terminate a Service accounts after a prolonged period of inactivity. If you have a free account we may terminate this agreement and/or delete any Your Data if you fail to sign in your account for more than 90 days. We will provide you with notice prior to any account suspension or termination, or Your Data deletion.

5.4 We reserve the right to terminate your access to the Developer Portal at any time, without notice, for any reason whatsoever.

6. NO WARRANTY.

6.1 ATHEER AND ITS RESPECTIVE SUPPLIERS PROVIDE THE DEVELOPER PORTAL AND SERVICES (INCLUDING THE CONTENT, APIS, SKD, SOFTWARE, DOCUMENTATION) “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE RISK OF USING IT. WE PROVIDE NO WARRANTIES, GUARANTEES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. THESE DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, INCLUDING APPLICATION TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

6.2 ATHEER DOES NOT CONTROL, REVIEW, REVISE, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY THIRD PARTY CONTENT, INFORMATION, MESSAGES, MATERIALS, PROJECTS ACCESSIBLE FROM OR LINKED THROUGH THE SERVICES, AND ATHEER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT AND SHALL NOT BE RESPONSIBLE FOR ANY OF THE FOREGOING. ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.

7. INDEMNITY.

To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Atheer, its affiliates and their respective directors, officers, employees and agents from and against any and all 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 use of the Services and the Developer Portal, (b) Your Data, and (c) any non-compliance by you with this License Agreement.

8. LIMITATION OF LIABILITY.

8.1 The aggregate liability of each party under this agreement is limited to direct damages up to the amount paid under this agreement for the Developer Services giving rise to that liability during the 12 months before the liability arose, or for Services provided free of charge, 100 USD.

8.2 NEITHER PARTY, NOR ITS SUPPLIERS WILL BE LIABLE FOR LOSS OF REVENUE, LOST PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF THE PARTY KNEW THEY WERE POSSIBLE.

8.3 The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: your breach of Section 1.1, any confidentiality obligation or violation of the other's intellectual property rights, and indemnification obligations.

9. MISCELLANEOUS.

We reserve all rights not expressly granted under this agreement, and no other rights are granted under this agreement by implication or estoppel or otherwise. You must send notices by mail to Atheer Labs, 2061 Landing Drive, Mountain View, CA 94043 Attn: CEO and Legal. 
You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify for the Developer Services, to your email address of record for the Developer Portal, or to your contact information of record for any other Services. Notices are effective on the date on the return receipt or, for email, when sent. You may not assign this agreement either in whole or in part. If any part of this agreement is held unenforceable, the rest remains in full force and effect. Failure to enforce any provision of this agreement will not constitute a waiver. We are independent contractors. This agreement does not create an agency, partnership or joint venture. There are no third-party beneficiaries to this agreement. This agreement is governed by State of California law, without regard to its conflict of laws principles. Any action to enforce this agreement must be brought in the Santa Clara County, State of California, USA. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. Additional terms applicable to this agreement based on the geography of your primary place of business are listed in Exhibit A. The following provisions will survive this agreement’s termination: 1.b, 2.a-b, 4, 5.a-d, 5.f-g, 6, 7, 8, 9, 10, 11, Exhibit A and all other definitions. The Services are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments. Neither party will be liable for any failure in performance due to causes beyond its reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services). We may modify this agreement at any time with or without individual notice to you by posting a revised version on the legal information section of the Developer Services and Developer Portal (or an alternate site we identify), or by notifying you in accordance with Section 10.b. Any modifications will be effective upon your continued use of a Service. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to our designated agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL NOT RECEIVE A RESPONSE.