Fluent SDK Terms of Use
These Software Development Kit (SDK) Terms of Use are a legal agreement between you and/or the entity on whose behalf you are downloading the SDK (“you,” “your”) and Fluent, LLC (“Fluent, “we,” “our” or “us”) governing your use of our software development kit files, tools, programs and utilities, as well as any plug-in or other application programming interfaces (“APIs”), sample code (“Sample Code”), libraries (“Libraries”), Source Code and Object Code, and related documentation (“Documentation”) and any upgrades, modified versions, additions, and improvements, if any, which we make available to you (collectively the “SDK”) to support the use and implementation of AdFlow. By using the SDK, and related materials made available to you, you agree to be bound by these Terms of Use and any documentation and guidelines accompanying the SDK, and all other agreements, terms, policies, and guidelines applicable to your use of AdFlow (collectively, the “Agreement”). BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SDK, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SDK.
AGREEMENT TERMS
1. Definitions
“Documentation” means any related explanatory materials accompanying the SDK.
“Intellectual Property Rights” means all rights under patent law, copyright law, trade secret law, trademark law, and all other proprietary rights and all registrations, application and goodwill associated therewith.
“Licensee Application” means any Licensee application that Fluent has approved to use the SDK.
"Licensee Website" means a website owned and/or operated by Licensee that incorporates the Adflow technology that Fluent has approved to use the SDK.
“SDK” means the Fluent Software Development Kit, which includes tools, libraries, sample code, documentation, APIs and any updates, which is licensed to Licensee subject to the terms of this Agreement.
2. Accepting this Agreement. You represent that you are not barred from receiving the SDK under the laws of the United States or other countries including the country in which you operate or from which you will use the SDK.
3. SDK License from Fluent
3.1 License Grant. Subject to the terms of this Agreement, Fluent grants Licensee a limited, revocable, non-sublicensable, worldwide, non-assignable and non-exclusive license to:
(i) Use our Adflow technology by facilitating communication between the frontend of the Licensee Websites and Licensee Applications and our systems;
(ii) Developing Licensee Websites and Applications that integrate with our systems and incorporate the SDK's functionalities to enable Adflow placements on your Licensee Websites and Applications; and
(iii) Such other uses as the parties may determine that are consistent with the terms of this Agreement.
3.2 Fluent's Ownership of SDK. You agree that we or third parties own all legal right, title and interest in and to the SDK, including any Intellectual Property Rights that subsist in the SDK. We reserve all rights not expressly granted to you.
3.3 Restrictions on Use of SDK. You may not, and may not enable others to, use the SDK for any purpose not expressly permitted by this Agreement. You may not copy (except for reasonable development and backup purposes), publish, modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, or algorithms in the SDK or any other Fluent product.
3.4 Changes to SDK. We are continuously working to improve the SDK and may update its form and nature from time to time. While we aim to ensure backward compatibility, there may be instances where future versions of the SDK might not be fully compatible with applications developed on previous versions. We commit to:
(i) Documenting Changes - Any significant changes to the SDK will be accompanied by comprehensive documentation detailing the nature of the changes, their impact, and guidance on adapting to these changes; and
(ii) Temporary Discontinuation - If we need to stop (either permanently or temporarily) providing the SDK or any of its features, we will make reasonable efforts to notify you in advance and provide you with reasons for such discontinuation.
By continuing to use the SDK, you acknowledge and accept the potential for such changes and our commitment to minimizing disruption.
3.5 Fluent Trademarks and Proprietary Rights Notices. Nothing in this Agreement gives you a right to use any of our trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without our prior written approval. You will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the SDK.
4. Use of the SDK by Licensee
4.1 Your IP Rights and Fluent's Use of Assets. Except for license rights you grant to us in this Section 4.1, we agree that we obtain no right, title or interest from you under this Agreement in or to any Licensee Website or Application that uses the SDK, including any Intellectual Property Rights that subsist in those websites or applications. Subject to your prior approval, not to be unreasonably withheld or delayed, we may, without your consent, include your name and/or other indicia in lists of our current and/or, as the case may be, former customers in promotional and marketing materials. You may (but are not required to) provide feedback, comments and suggestions (collectively, “Feedback”) to us. You hereby grant us a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose.
4.2 Permitted Use. You agree to use the SDK and write applications only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). 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 Agreement. Any breach of the obligations and restrictions in this Agreement by your employees or consultants shall be deemed a breach by you.
4.3 Licensee Prohibitions. You agree that you will not (a) engage in any activity with the SDK, including the development or distribution of an application, that interferes with, disrupts, damages, or accesses in an unauthorized manner servers, networks, or other properties or services of us or any third party or any mobile communications carrier; or (b) use the SDK to develop an application that competes with us or any of our services.
5. Your Developer Credentials
You agree that you are responsible for maintaining the confidentiality of any developer credentials that we issued to you and that you will be solely responsible for all applications that are developed under your developer credentials.
6. Privacy and Confidentiality
6.1 Collection of Information by Fluent. In order to continually innovate and improve the SDK, wet may collect certain usage statistics from the SDK and the Adflow technology and information on which tools and/or services in the SDK are being used and how they are being used. The data collected is examined in the aggregate to improve the SDK and is maintained in accordance with our Privacy Policy.
6.2 Confidentiality. “Confidential Information” means all information or materials know-how, software or other information including, but not limited to, proprietary information and materials regarding Adflow technology, products, business information or objectives, your implementation and use of the SDK, or other information provided by one party to the other that is in tangible form and labeled “confidential” or the like or which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether marked or identified as such including non-public materials relating to the SDK, Adflow technology or other Fluent products, and the terms and conditions of this Agreement. Each party shall keep all Confidential Information that it receives confidential using the same protections that such party applies to its own information of like importance, but in no event less than reasonable care, and may use such information solely for the purposes contemplated by this Agreement or as otherwise agreed in writing.
Confidential Information may be disclosed solely to employees, contractors and consultants who have a legitimate need to know the Confidential Information and are bound to confidentiality restrictions substantially equivalent to this Section 6.2. This Section 6.2 will not apply to information that: (a) was rightfully in possession of the recipient prior to receipt of such Confidential Information from the discloser; (b) is or becomes a matter of public knowledge through no fault of the party receiving such Confidential Information hereunder; (c) is independently developed by Licensee without breach of any confidentiality obligations; or (d) is disclosed by Licensee with Fluent's written approval. In addition, a party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that recipient notifies discloser of such required disclosure promptly and in writing and cooperates with discloser, at discloser's request and expense, in any lawful action to contest or limit the scope of such required disclosure
The parties acknowledge that breach of this Section 6.2 may cause irreparable damage to the disclosing party for which monetary damages will be an inadequate remedy. Accordingly, the disclosing party will be entitled to seek and obtain injunctive and any relief (legal or equitable) to restrain any breach.
7. Third Party Applications
7.1 Responsibility and Liability for Third Party Applications and Content. If you use the SDK to run applications developed by a third party or that access data, content or resources provided by a third party, you agree that we are not responsible for those applications, data, content, or resources. You understand that all data, content or resources which you may access through such third-party applications are the sole responsibility of the person from which they originated and that we are not liable for any loss or damage that you may experience from use or access of any of those third-party applications, data, content, or resources.
7.2 Third Party Intellectual Property Rights. You acknowledge that the data, content, and resources presented to you through such a third-party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on these data, content, or resources (either in whole or in part) unless you have been specifically given permission to do so by the relevant owners.
7.3 Third-Party Agreements. You acknowledge that your use of such third-party applications, data, content, or resources may be subject to separate terms between Licensee and the relevant third party. In that case, this Agreement does not affect your legal relationship with these third parties. The SDK may otherwise include software or other materials that are provided under a separate license agreement, and that separate license will govern the use of such software or other materials if there's a conflict with this Agreement. Any such separate license agreement may be indicated in the license, notice, or readme files distributed with the applicable software or other materials or in related documentation.
8. Using Fluent APIs
8.1 Fluent Data. If you use any API to retrieve data from us, you acknowledge that the data may be protected by intellectual property rights which we own or those parties that provide the data (or by other persons or companies on their behalf). Your use of any such API may be subject to additional terms of service. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this data (either in whole or in part) unless allowed pursuant to this Agreement or our written permission.
8.2 User's Data. If you use any API to retrieve a user's data from us, you acknowledge and agree that you shall retrieve data only with the user's explicit consent and only when, and for the limited purposes for which, the user has given you permission to do so.
9. Terminating this Agreement
9.1 Term. This Agreement will continue to apply until terminated as set out below.
9.2 Termination by Licensee. You may terminate this Agreement by (a) ceasing use of the SDK and any relevant developer credentials; and (b) uninstalling and destroying all copies of the SDK that are in your possession, custody or control or the possession, custody or control of your authorized users.
9.3 Termination by Fluent. We may at any time, terminate this Agreement if: (a) you have breached any provision of this Agreement; (b) we are required to do so by law; (c) the partner with whom we offered certain parts of SDK (such as APIs) to you has terminated its relationship with us or ceased to offer certain parts of the SDK to you; (d) we decide to no longer provide the SDK or certain parts of the SDK to users in the country in which you use the service, (e) our provision of the SDK to you, in our sole discretion, is no longer commercially viable; or (f) if there's a change of control, merger or acquisition of us and the party in control of us following such transaction(s) decides, in its sole discretion, to terminate the Agreement.
9.4 Effect of Termination. Sections 3.2, 4.1, 4.3, 5, 9.4, 10, 11, 12 and 14 shall survive termination of this Agreement. Upon termination, you must uninstall and destroy all copies of the SDK that are in the possession, custody or control of you and your authorized users. Upon our request, you shall submit to us a certificate, signed by your duly authorized representative, confirming such destruction and disablement thereof.
10. DISCLAIMER OF WARRANTIES
10.1 LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT ITS USE OF THE SDK IS AT ITS SOLE RISK AND THAT THE SDK IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM FLUENT. WITHOUT LIMITING THE FOREGOING, FLUENT MAKES NO WARRANTY OF ANY KIND THAT THE SDK OR DOCUMENTATION, OR ANY ADFLOW OR OTHER FLUENT TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS, EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
10.2 LICENSEE'S USE OF THE SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT LICENSEE'S DISCRETION AND RISK AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
10.3 FLUENT FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY
EACH PARTY EXPRESSLY UNDERSTANDS AND AGREES THAT THE OTHER PARTY AND ITS LICENSORS SHALL NOT BE LIABLE TO SUCH PARTY UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY SUCH PARTY, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT THE OTHER PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. IN ANY EVENT, THE LIABILITY OF FLUENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100.
12. Indemnification.
To the maximum extent permitted by law, Licensee agrees to defend, indemnify and hold harmless Fluent, 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 SDK, (b) any application Licensee develops on the SDK (including products liability, privacy or intellectual property infringement claims) except to the extent such claim is attributable to the SDK or other Fluent Intellectual Property, and (c) based upon your negligence or willful misconduct or any breach or alleged breach of its representations, warranties, and covenants under this Agreement. In no event may Licensee enter into any settlement or like agreement with a third party that affects Fluent's rights or binds Fluent in any way, without the prior written consent of Fluent.
13. General Terms. This Agreement: (i) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, electronic or otherwise, between the parties relating to the subject matter hereof. If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. The parties consent to the exclusive jurisdiction of the state and federal courts having jurisdiction over New York County, New York and waive the right to trial by jury. Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party's prior written consent. You may not assign this Agreement without our prior written, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. We may assign this Agreement without restriction and without any notice to you. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.