Terms of Use for the ACTV8 SDK

To get started with the ACTV8, Inc. Software Development Kit (“SDK”), please read these Terms of Use. The SDK is licensed to you by ACTV8 Inc. (“ACTV8”) subject to these Terms of Use. You may not use the SDK until you accept the terms and conditions of these Terms of Use.

You may not use the SDK and may not accept these Terms of Use if you are a person barred from receiving the SDK under the laws of the United States or other countries, including the country in which you are resident or from which you use the SDK.

If you agree to be bound by these Terms of Use on behalf of your employer or another entity you represent, you must be able to warrant that you have full legal authority to bind your employer or such entity to these Terms of Use.


1. SDK License from ACTV8

1.1 Subject to these terms of these Terms of Use, ACTV8 grants you a limited, worldwide, royalty-free, non-assignable, non-exclusive and non-sub licensable license to use the SDK solely to develop within your application to include the SDK’s capabilities.

1.2 You may not use the SDK to develop applications for other platforms or to develop another SDK.

1.3 You agree that ACTV8 or its licensors own all legal right, title, and interest in and to the SDK, including any “Intellectual Property Rights” that subsist in the SDK. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all proprietary rights. ACTV8 reserves all rights not expressly granted to you.

1.4 You may not use the SDK for any purpose not expressly permitted by these Terms of Use. Except to the extent required by applicable third party licenses, you may not: (a) copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part of the SDK; or (b) load any part of the SDK onto a mobile handset or any other hardware device except a personal computer, combine any part of the SDK with other software, or distribute any software of device incorporating a part of the SDK.

1.5 Use, reproduction and distribution of components of the SDK licensed under an open source software license are governed solely by these terms of that open source software license and not theseTerms of Use.

1.6 You agree that the form and nature of the SDK that ACTV8 provides may change and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK.

1.7 You agree that you will not remove, obscure, or alter any proprietary rights, notices (including copyright and trademark notices that may be fixed or contained within the SDK).


2. Use of the SDK by You

2.1 You agree to use the SDK and write an application only for purposes that are permitted by (a) these Terms of Use 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 and any laws, regulations, rules, self-regulatory codes, and guidelines regarding the collection, use, processing, storage, or transmittal of personal information or of information collected from or about end users and/or specific devices).

2.2 You agree that if you use the SDK to develop applications for general pubic users, you will protect the privacy and legal rights of those users and you will not permit children who you have actual knowledge are under the age of 13 to use the applications.

2.3 You agree that you will not use the SDK to develop applications that are directed to children under the age of 13 and that collect, use, or disclose personal information provided from children, as defined by the Children’s Online Privacy Protection Act.

2.4 You agree that you will not use the SDK to develop applications that are related to pharmaceutical companies, products, or services, or to any other company that collects or uses sensitive health-related information, including but not limited to: (i) information about any past, present, or potential future health or medical conditions or treatments, including genetic, genomic, and family medical history based on, obtained or derived from pharmaceutical prescriptions or medical records, or similar health or medical sources that provide actual knowledge of a condition or treatment (the source is sensitive); or (ii) information, including inferences, about sensitive health or medical conditions or treatments, including, but not limited to, all types of cancer, mental health-related conditions, and sexually transmitted diseases (the condition or treatment is sensitive regardless of the source).

2.5 You agree that you will not 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 the servers, networks, or other properties or services of any third party including, but not limited to, ACTV8.

2.6 You agree that you are solely responsible for (and that ACTV8 has no responsibility to you or to any third party for) any breach of your obligations under these Terms of Use, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which ACTV8 or any third party may suffer) of any such breach.


3. Your Developer Credentials

3.1 You agree that you are responsible for maintaining the confidentiality of any developer credentials that may be issued to you by ACTV8 or which you may choose yourself and that you will be solely responsible for all applications that are developed under your developer credentials.


4. Privacy and Information

4.1 The data collected is examined in the aggregate to improve the SDK and is otherwise collected, used, processed, stored, and transmitted in accordance with ACTV8’s SDK Privacy Policy (link to privacy policy). By using the SDK you acknowledge and consent to ACTV8’s SDK Privacy Policy. Yes we will put in the link to the privacy policy. Draft Privacy policy is attached.

4.2 The data collected may be transferred to and processed in the United States or countries other than the user’s country of residence. ACTV8 also may subcontract the processing of the user’s data to, or otherwise share the user’s data with, third parties in the United States or countries other than the user’s country of residence. You must ensure that such transfer and processing complies with applicable laws.

4.3 You agree that any application that integrates the SDK will have an easily accessible privacy policy, the presentation, posting, and content of which shall comply with all applicable laws, that describes how the application collects, uses, shares, and protects all information, including personal information, collected by the application. You agree that you will fully comply with such application privacy policy. Without limiting the generality of the foregoing, the privacy policy shall contain:

A) A statement of the fact that the application allows third parties to collect information through the device microphone using audible watermarked technology, which is inaudible to the individual, when an individual is using the application and/or when an individual is not using the application, as applicable, to determine the video content, programs, or advertising that the individual has viewed on other devices, for purposes of delivering advertising to the individual’s device, or other devices belonging to the individual, and for related marketing purposes;

B) A statement of the fact that the application collects precise location information from the individual’s device and shares it with third parties for purposes of delivering advertising to the individual’s device based on the individual’s precise location information, together with a mechanism to collect the individual’s opt-in consent to such use of his or her precise location information; and

C) A conspicuous link to or description of the opt-out mechanism that allows individuals to opt out of having their information (other than their precise location information) collected and used to target advertising through the ACTV8 services.

4.4 You agree that any application that integrates the SDK will provide clear and conspicuous notice and obtain prior express consent from individuals, either: (i) as part of the process of downloading the application to a device; (ii) at the time the application is launched or installed for the first time; or (iii) at the moment when the information is collected or accessed from the application through the SDK for the first time, regarding:

A) The fact that the application allows third parties to collect information through the device microphone using audible watermarked technology, which is inaudible to the individual, when an individual is using the application and/or when an individual is not using the application, as applicable, to determine the video content, programs, or advertising that the individual has viewed on other devices, for purposes of delivering advertising to the individual’s device, or other devices belonging to the individual, and for related marketing purposes;

B) The fact that the application collects precise location information from the individual’s device and shares it with third parties for purposes of delivering advertising to the individual’s device based on the individual’s precise location information, together with a mechanism to collect the individual’s opt-in consent to such use of his or her precise location information; and

C) A conspicuous link to or description of the opt-out mechanism that allows individuals to opt out of having their information (other than their precise location information) collected and used to target advertising through the ACTV8 services.


5. Third Party Applications

5.1 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 ACTV8 is 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 ACTV8 is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party applications, data, content or resources.

5.2 You should be aware of 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.

5.3 You acknowledge that your use of such third party applications, data, content or resources may be subject to separate terms between you and the relevant third party. In that case, these Terms of Use does not affect your legal relationship with these third parties.


6. Terminating these Terms of Use

6.1 These Terms of Use will continue to apply until terminated by either you or ACTV8 as set out below.

6.2 If you want to terminate these Terms of Use, you may do so with thirty (30) days’ prior notice in writing. After the notice period you may terminate by ceasing your use of the SDK and any relevant developer credentials.

6.3 ACTV8 may at any time, terminate these Terms of Use with you if:

A) You have breached any provision of these Terms of Use; or

B) ACTV8 is required to do so by law; or

C) ACTV8 decides to no longer provide the SDK or certain parts of the SDK to users in the country in which you are resident or from which you use the service, or

D) the provision of the SDK or certain SDK services to you by ACTV8 is, in ACTV8’s sole discretion, no longer commercially viable

E) By ACTV8 at ACTV8’s sole discretion

6.4 When these Terms of Use comes to an end, all of the legal rights, obligations and liabilities that you and ACTV8 have benefited from, been subject to (or which have accrued over time whilst these Terms of Use have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 11.7 shall continue to apply to such rights, obligations and liabilities indefinitely.


7. Disclaimer of Warranties

7.1 You expressly understand and agree that your use of the SDK is at your sole risk, and that the SDK is provided “as is” and “as available” without warranty of any kind from ACTV8.

7.2 Your use of the SDK, and any material downloaded or otherwise obtained through the use of the SDK is at your own discretion and risk and you are solely responsible for any damage to your computer system or other device or loss of data that result from such use.

7.3 ACTV8 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 on-infringement.


8. Limitation of Liability

8.1 You expressly understand and agree that ACTV8, its subsidiaries and affiliates, and its licensors, licensees and resellers (the “ACTV8 parties”) shall not be liable to you under any theory of liability for any direct, indirect, incidental, special, consequential, or exemplary damages that may be incurred by you, including nay loss of data, whether or not ACTV8 or its representatives have been advised of or should have been aware of the possibility of any such losses arising. In any event, the ACTV8 Parties’ total aggregate liability to you for all damages of any kind and type (regardless of whether based in contract or tort) shall not exceed the license fee (if any) paid by you for the SDK


9. Indemnification

9.1 To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless the ACTV8 parties 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 accruing from (a) your use of the SDK, (b) any application you develop on the SDK that infringes any copyright, trademark, trade secret, trade dress, patent or other Intellectual Property Right of any person or defames any person or violates their rights of publicity or privacy, and (c) any non-compliance by you with these Terms of Use.


10. Changes to these Terms of Use

10.1 ACTV8 may make changes to these Terms of Use as it distributes new versions or updates of the SDK (although any such new versions and updates are at the sole discretion of ACTV8). When these changes are made, ACTV8 will make a new version of these Terms of Use available on the website where the SDK is made available, and your use of the new version or updates will be your consent and agreement to be bound by the terms of such changes to these Terms of Use, and you agree to immediately update and use new versions as they become available.


11. General Legal Terms

11.1 These Terms of Use constitutes the entire agreement between you and ACTV8 regarding the SDK and governs your use of the SDK (excluding any services which ACTV8 may provide to you under a separate written agreement), and completely replaces any prior agreements between you and ACTV8 in relation to the SDK.

11.2 You agree that if ACTV8 does not exercise or enforce any legal right or remedy which is contained in these Terms of Use (or which ACTV8 has the benefit of under any applicable law), this will not be taken to be a waiver of ACTV8’s rights and that those rights or remedies will still be available to ACTV8.

11.3 If any court of law, having the jurisdiction to decide on its matter, rules that any provision of these Terms of Use is invalid, then that provision will be removed from these Terms of Use without affecting the rest of these Terms of Use. The remaining provisions of these Terms of Use will continue to be valid and enforceable.

11.4 You acknowledge and agree that each member of the group of companies of which ACTV8 is the parent shall be third party beneficiaries to these Terms of Use and that such other companies shall be entitled to directly enforce, and rely upon, any provisions of these Terms of Use that confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms of Use.

11.5 Export restrictions. The SDK is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the SDK. These laws include restrictions or destinations, end users and end use.

11.6 The rights granted in these Terms of Use may not be assigned or transferred by you without the prior written approval of ACTV8. You shall not be permitted to delegate your responsibilities or obligations under these Terms of Use without the prior written approval of ACTV8.

11.7 These Terms of Use, and your relationship with ACTV8 under these Terms of Use, shall be governed by the laws of the State of California without regard it its conflict of laws provisions. You and ACTV8 agree to submit to the exclusive jurisdiction of the courts located within the county of Los Angeles, California to resolve any legal matter arising from these Terms of Use. Notwithstanding this, you agree that ACTV8 shall be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdictions.

11.8 Your use of the SDK affirms that you have read these Terms of Use, understand them, and agree to by bound by the contents of these Terms of Use