Didimo Source Code License
Didimo Source Code License Agreement
Didimo has developed the Didimo API Services and controls the Source Code (as defined below). Licensee is interested in the Didimo API and has developed and/or is in the process of developing the Application (as defined below) and wishes to integrate the Didimo API Services into Licensee’s Application and requires and/or wishes to use the Source Code in order to do so.
The parties agree:
1. Grant of licence to use the Source Code.
1.1 In consideration of Licensee subscribing to or accepting an API Agreement for the Didimo API Services and performing its obligations in accordance with the Terms and Conditions, and with effect from the Commencement Date, Didimo grants Licensee a non-exclusive, revocable, non-transferable and non-sub-licensable (except as expressly granted by Didimo with its prior, written consent (which may be withheld for any reason)) licence to use the Source Code for the sole purpose of Licensee integrating the Didimo API Services into its Application and subject to other restrictions on use in Section 2 below.
1.2 The grant of the licence to use the Source Code in Section 1 shall be for such duration as: (i) the term of Licensee’s API Agreement; or (ii) for as long as Licensee reasonably requires to use such Source Code in order to use Didimo Creations that Licensee has lawfully obtained in accordance with the terms of Licensee’s API Agreement (whichever is later) unless terminated earlier in accordance with the terms of this Agreement.
1.3The Source Code licensed under this Agreement is provided on an ‘As Is’ basis and shall not include any error corrections, fixes, updates, new releases or new versions of the Source Code unless otherwise made available to Licensee by Didimo in its sole discretion.
2. Use of the Source Code.
2.1 Licensee shall not use the Source Code contrary to any restriction stated in this Agreement or the Terms and Conditions, or otherwise in a way that is not expressly permitted by this Agreement or the Terms and Conditions.
2.2 Except to the extent otherwise expressly agreed by the parties to this Agreement in writing, Licensee shall ensure that Licensee’s use of the Source Code comply with: (a) the Terms and Conditions (to the extent applicable); (b) any limits that Didimo imposes on the number and frequency of Applications or integrations that the Licensee may use the Source Code for, which Didimo may do in its sole discretion from time to time, to the extent applicable; (c) a valid API Agreement in force at all relevant times (where relevant), or otherwise in order to use any number of Didimo Creations which have been lawfully obtained under an API Agreement that Licensee has entered into with Didimo; and (d) all relevant legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency or other relevant body. Licensee shall not use the Source Code: (i) with any services or any application, platform or API which is provided by a competitor of Didimo or any company or individual which intends to or attempts to compete with the services provided by Didimo and/or Didimo’s business; (ii) to integrate or attempt to integrate the Application (or any other technology or platform) with any other platform or services other than the Didimo API Services; (iii) to attempt to reverse engineer or otherwise interfere with the Didimo API Services; or (iv) in any way which may infringe the Intellectual Property Rights of third parties or of Didimo or Didimo’s affiliates. Except as expressly permitted by mandatory law which cannot be varied by agreement of the parties, Licensee shall not use, copy, modify, adapt, correct errors in, create or make derivative works of or from, or commercially distribute the Source Code or the Didimo API Services (save as permitted by the Terms and Conditions or otherwise with Didimo’s prior, written consent), including in any way which inaccurately represents the association between Didimo and Licensee.
2.3 Licensee is not permitted to extend the licence to any third parties (including any of its affiliates unless such affiliates are authorised under the API Agreement) without Didimo’s prior, written consent (which may be refused for any reason).
Licensee shall ensure that Didimo may use any feedback and suggestions for improvement relating to the Source Code, Platform and/or the Didimo API Services provided by Licensee or any end user of the Application without charge or limitation (Feedback). Licensee hereby assigns (or shall or procure the assignment) of all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Didimo at the time such Feedback is first provided to Didimo. Licensee hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Licensor under this Agreement.
4. Free of Charge. In consideration of having an API Agreement and Didimo providing Didimo API Services thereunder, the Source Code shall be licensed to Licensee on the terms of this Agreement and the Terms and Conditions free of charge.
5. Data protection. It is not anticipated that any Personal Data will be processed under this Agreement. All matters related to Personal Data are governed by the terms of the API Agreement.
6. Intellectual Property Rights.
6.1 Except for Licensee’s licence right to use the Source Code, and the Didimo API Services as expressly granted above and/or as otherwise granted in the Terms and Conditions, all Intellectual Property Rights in and to the Source Code, and the Didimo API Services and any Feedback shall vest and remain vested in Didimo or its licensors (where applicable).
6.2 All Intellectual Property Rights in and to the Application shall vest and remain vested in Licensee.
7. Modifications to the Source Code by Didimo.
Didimo reserves the right to make modifications to the Source Code at any time for any reason, provided that such modifications do not materially degrade the Source Code, or otherwise materially interfere with the functionality of, the Source Code. Notice of such modifications shall be posted on Didimo’s GitHub page or on Didimo’s website. Didimo does not have to make changes to the Source Code to ensure it is compatible with other versions of the Didimo API Services.
To the maximum extent permitted by applicable law, Licensee acknowledges and agrees that:
8.1 The Source Code, and the Didimo API Services, may not be free of bugs or errors and agrees that the existence of minor bugs or errors shall not constitute a breach of this Agreement;
8.2 Didimo shall not be liable for any Losses arising out of any virus, trojan horse, worm or other malicious code (it being Licensee’s and other relevant third parties’ responsibilities to put in place appropriate measures to protect their data and systems against such threats);
8.3 Licensee remains responsible for its own hardware and content and any data it uses in connection with the Source Code, and the Didimo API Services;
8.4 Didimo is not responsible for any Losses that arise in connection with third parties unlawfully obtaining access to Licensee’s Didimo API Services or Didimo Creations in order to abuse the nature and intent of the Source Code provided hereunder, to the extent applicable.
Subject to the express terms set out in this Agreement and to the maximum extent permitted by applicable law, Didimo hereby disclaims all other warranties, terms and conditions, either express, implied or statutory in relation to the Source Code and the Didimo API Services.
9. Didimo’s liability.
In no event shall the aggregate liability of Didimo howsoever arising in respect of all Losses arising under or in connection with this Agreement exceed the total fees paid or payable to it by Licensee under the applicable API Agreement, save where Didimo’s liability cannot excluded or limited by applicable law (including in the event of fraud or fraudulent misrepresentation, death or personal injury caused by negligence). Didimo shall not be liable for consequential, indirect or special losses.
10. Licensee’s liability.
Licensee shall indemnify, keep indemnified and hold harmless Didimo against all Losses which Didimo may sustain or incur in connection with: (a) the Application infringing the Intellectual Property Rights of any third party; and (b) any misuse of the Source Code and the Didimo API Services in breach of this Agreement and the Terms and Conditions.
This Agreement shall commence on the Commencement Date. Didimo may, without prejudice to its other rights and remedies, upon notice to Licensee terminate this Agreement at any time by providing no less than 30 days notice. In the event of termination or expiry of this Agreement for any reason, all licences granted to Licensee under this Agreement shall terminate upon expiry of the notice period.
12. General Provisions.
Notices. Except as otherwise expressly stated in this Agreement, notices may be published on Didimo’s GitHub page or on the Didimo website or sent to Licensee using the details provided in the API Agreement. In the case of Didimo, notices and other communications shall be sent to: Didimo Inc., for the attention of “Legal” at: [email protected]. This Section 12 ‘Notices’ does not apply to notices given in legal proceedings or arbitration.
No variation. No variation of this Agreement by Licensee shall be valid or effective unless it is accepted by Didimo in writing. Didimo may update the terms of this Agreement at any time and in its sole discretion. It is Licensee’s responsibility to regularly check for notice of such modifications, which shall be posted on Didimo’s GitHub page or on Didimo’s website.
Conflicts within the Terms and Conditions. If there is a conflict between the terms contained in this Agreement and the terms Licensee’s API Agreement, in respect of use of the Source Code and the licence granted by this Agreement, the terms of the main body of this Agreement shall prevail.
13. Governing law and Jurisdiction.
The internal laws of the State of Delaware, regardless of any choice of law principles, shall govern the validity of this Agreement, the construction of its terms and the interpretation and enforcement of the rights and duties of the parties. All disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this Agreement, the use or provision of the Source Code or any other Services and/or the relationship between the parties hereunder, shall be finally settled by arbitration in San Francisco, CA in accordance with the International Arbitration Rules of the American Arbitration Association. The award rendered by the arbitrator shall be final and binding upon the parties hereto, and any judgment upon such award may be entered in any court having jurisdiction thereof. Arbitration proceedings shall be conducted in the English language. Any and all costs and fees related to any arbitration proceedings hereunder shall be paid solely by the party hereto which does not prevail and against whom the arbitration award is rendered, as determined by the arbitrator. Notwithstanding the foregoing, either party hereto shall, at any time, have the right to seek preliminary equitable or injunctive relief in any court of competent jurisdiction, including without limitation in order to enjoin the infringement of such party’s intellectual property rights.
14. Definitions and interpretation. In this Agreement:
Application means the application which is being created, or developed or which has been developed by Licensee and for which Licensee requires or is interested in including the Didimo API Services, on the basis of Licensee’s API Agreement and subject to the Terms and Conditions;
Commencement Date means the date on which Licensee first uses the Source Code;
Didimo means Didimo Inc., a Delaware corporation and owner of the Intellectual Property Rights that are subject to the Licence granted hereunder;
Didimo API Services means the software solution services provided by Didimo to Licensee under licence through an application program interface;
Didimo Creation(s) means the 3-D animation file in an .fbx or other format of a person’s head which has been created by Licensee under an API Agreement through use of the Didimo API Services;
Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography topography rights, utility models, domain names and all similar rights and, in each case: (i) whether registered or not; (ii) including any applications to protect or register such rights; (iii) including all renewals and extensions of such rights or applications; (vi) whether vested, contingent or future; and (v) wherever existing;
Licensee means a user of Didimo’s API Services which is or has been bound by an API Agreement, being a legal or natural person exercising permissions granted by Didimo to it hereunder;
Losses means all incurred losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including legal fees on a solicitor/client basis) and disbursements and costs of investigation, litigation, settlement, judgment interest and penalties;
Source Code means Didimo’s proprietary source code which is made available to Licensee via this GitHub page subject to the Terms and Conditions, which is aimed at providing Licensee with the tools to create an interface between the Didimo API Services and the Application.
API Agreement means the terms or other agreement that Licensee has entered into and/ or accepted in order to use the Didimo API Services and the Source Code pursuant to the terms of this Agreement, whether such terms or agreement is on a fee-payment, trial basis or free basis, and including the terms and conditions governing such use of the Didimo API Services, including but not limited to the terms available at https://privacy.mydidimo.com and updated by Didimo from time to time in its sole discretion.