lowdefy/lowdefy

Lowdefy Commercial License Agreement

Please read this Lowdefy Commercial License Agreement (the "Agreement")
carefully before using Lowdefy (as defined below), which is offered by
Lowdefy, Inc. or its affiliated Legal Entities ("Lowdefy, Inc").

By downloading Lowdefy or using it in any manner, or mutually executing or
accepting one or more orders with Lowdefy, Inc which reference this agreement
(each, an “order form”), You agree that You have read and agree to be bound by
the terms of this Agreement. If You are accessing Lowdefy on behalf of a Legal
Entity, You represent and warrant that You have the authority to agree to these
terms on its behalf and the right to bind that Legal Entity to this Agreement.
Use of Lowdefy is expressly conditioned upon Your assent to all the terms of
this Agreement, to the exclusion of all other terms.

Please note that Lowdefy, Inc may modify the terms and conditions of this
Agreement in accordance with Section 15.

1. Definitions. In addition to other terms defined elsewhere in this Agreement,
the terms below have the following meanings.

(a) "Lowdefy" shall mean the Lowdefy application development platform
(in both Object and Source form) and related documentation,
including both Community Edition and Commercial Edition, as defined
below.

(b) "Lowdefy Community Edition" shall mean any Lowdefy code in Object or Source
form licensed under the Apache License Version 2.0, as indicated at
https://github.com/lowdefy/lowdefy/LICENSE

(c) "Lowdefy Commercial Edition" shall mean the additional features made
available by Lowdefy, Inc, the use of which is subject to additional terms set
out below.

(d) "Contribution" shall mean any work of authorship, including the original
version of the Work and any modifications or additions to that Work or
Derivative Works thereof, that is intentionally submitted to Lowdefy, Inc for
inclusion in the Work by the copyright owner or by an individual or Legal Entity
authorized to submit on behalf of the copyright owner. For the purposes of this
definition, "submitted" means any form of electronic, verbal, or written
communication sent to Lowdefy, Inc or its representatives, including but not
limited to communication on electronic mailing lists, source code control
systems, and issue tracking systems that are managed by, or on behalf of,
Lowdefy, Inc for the purpose of discussing and improving the Work, but
excluding communication that is conspicuously marked or otherwise designated in
writing by the copyright owner as "Not a Contribution."

(e) "Contributor" shall mean any copyright owner or individual or Legal Entity
authorized by the copyright owner, other than Lowdefy, Inc, from whom
Lowdefy, Inc receives a Contribution that Lowdefy, Inc subsequently
incorporates within the Work.

(f) "Derivative Works" shall mean any work, whether in Source or Object form,
that is based on (or derived from) the Work, such as a translation, abridgement,
condensation, or any other recasting, transformation, or adaptation for which
the editorial revisions, annotations, elaborations, or other modifications
represent, as a whole, an original work of authorship. For the purposes of this
License, Derivative Works shall not include works that remain separable from, or
merely link (or bind by name) to the interfaces of, the Work and Derivative
Works thereof.

(g) "Legal Entity" shall mean the union of the acting entity and all other
entities that control, are controlled by, or are under common control with that
entity. For the purposes of this definition, "control" means (i) the power,
direct or indirect, to cause the direction or management of such entity, whether
by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of
the outstanding shares, or (iii) beneficial ownership of such entity.

(h) "License" shall mean the terms and conditions for use, reproduction, and
distribution of a Work as defined by this Agreement.

(i) "Licensor" shall mean Lowdefy, Inc or a Contributor, as applicable.

(j) "Object" form shall mean any form resulting from mechanical transformation
or translation of a Source form, including but not limited to compiled object
code, generated documentation, and conversions to other media types.

(k) "Source" form shall mean the preferred form for making modifications,
including but not limited to software source code, documentation source, and
configuration files.

(l) "Third Party Works" shall mean Works, including Contributions, and other
technology owned by a person or Legal Entity other than Lowdefy, Inc, as
indicated by a copyright notice that is included in or attached to such Works or
technology.

(m) "Work" shall mean the work of authorship, whether in Source or Object form,
made available under a License, as indicated by a copyright notice that is
included in or attached to the work.

(n) "You" (or "Your") shall mean an individual or Legal Entity exercising
permissions granted by this License.

(o) "Order Form" means a Lowdefy Order Form that has been signed and executed
by both You and Lowdefy that incorporates these Terms.

2. Licenses.

(a) License to Lowdefy Community Edition. The Lowdefy Community Edition is
licensed to You pursuant to the Apache License Version 2.0. For clarity, the
terms of this Agreement, other than the relevant definitions in Section 1 and
this Section 2(a) do not apply to Lowdefy Community Edition.

(b) License to Lowdefy Commercial Edition.

(i) Grant of Copyright License: Subject to the terms of this Agreement, Licensor
hereby grants to You a worldwide, non-exclusive, non-transferable limited
license to reproduce, prepare Commercial Derivative Works (as defined below) of,
publicly display, publicly perform, sublicense, and distribute Lowdefy
Commercial Edition for Your business purposes, for so long as You are not in
violation of this Section 2(b) and are current on all payments required by
Section 4 below.

(ii) Grant of Patent License: Subject to the terms of this Agreement, Licensor
hereby grants to You a worldwide, non-exclusive, non-transferable limited patent
license to make, have made, use, offer to sell, sell, import, and otherwise
transfer Lowdefy Commercial Edition, where such license applies only to those
patent claims licensable by Licensor that are necessarily infringed by their
Contribution(s) alone or by combination of their Contribution(s) with the Work
to which such Contribution(s) was submitted. If You institute patent litigation
against any entity (including a cross-claim or counterclaim in a lawsuit)
alleging that the Work or a Contribution incorporated within the Work
constitutes direct or contributory patent infringement, then any patent licenses
granted to You under this License for that Work shall terminate as of the date
such litigation is filed.

(iii) License to Third Party Works: From time to time Lowdefy, Inc may use, or
provide You access to, Third Party Works in connection with Lowdefy Commercial
Edition. You acknowledge and agree that in addition to this Agreement, Your use
of Third Party Works is subject to all other terms and conditions set forth in
the License provided with or contained in such Third Party Works. Some Third
Party Works may be licensed to You solely for use with Lowdefy Commercial
Edition under the terms of a third party License, or as otherwise notified by
Lowdefy, Inc, and not under the terms of this Agreement. You agree that the
owners and third party licensors of Third Party Works are intended third party
beneficiaries to this Agreement.

3. Support. From time to time, in its sole discretion, Lowdefy, Inc may offer
professional services or support for Lowdefy, which may now or in the future
be subject to additional fees.

4. Fees for Lowdefy Commercial Edition or Lowdefy Support.

(a) Fees. The License to Lowdefy Commercial Edition is conditioned upon Your
entering into a signed written agreement with Lowdefy, Inc for its use (a
"Paid License") and timely paying Lowdefy, Inc for such Paid License. Fees are
due and payable as set forth in an applicable Order Form. Lowdefy, Inc will
invoice You as set forth in the Order Form. All Fees under this Agreement are
payable within thirty (30) days from the date of Lowdefy, Inc’s invoice.
Payment shall be made without any right of set-off or deduction. All payments
made pursuant to this Agreement shall be made in the currency specified on the
Order Form and are nonrefundable. All payments will be made in accordance with
payment terms in the Order Form. Any professional services or support for
Lowdefy may also be subject to Your payment of fees, which will be specified
by Lowdefy, Inc when you sign up to receive such professional services or
support. Lowdefy, Inc reserves the right to change the fees at any time with
prior written notice; for recurring fees, any such adjustments will take effect
as of the next pay period.

(b) Overdue Payments and Taxes. Overdue payments are subject to a service charge
equal to the lesser of 1.5% per month or the maximum legal interest rate allowed
by law, and You shall pay all Lowdefy Inc.’s reasonable costs of collection,
including court costs and attorneys’ fees. Fees are stated and payable in U.S.
dollars and are exclusive of all sales, use, value added and similar taxes,
duties, withholdings and other governmental assessments (but excluding taxes
based on Lowdefy, Inc’ income) that may be levied on the transactions
contemplated by this Agreement in any jurisdiction, all of which are Your
responsibility unless you have provided Lowdefy, Inc with a valid tax-exempt
certificate.

(c) Usage Information. You acknowledge and agree that Lowdefy may be configured
to collect and send to Lowdefy, Inc usage data and telemetry regarding Your use
of Lowdefy (“Usage Data”), and Lowdefy, Inc will be free to use Usage Data
(i) to verify Your use of Lowdefy and payment of applicable Fees and (ii) to
improve and enhance Lowdefy and for other development, diagnostic and
corrective purposes in connection with Lowdefy and other Lowdefy, Inc
offerings. In the event that Lowdefy is not configured to automatically provide
Usage Data to Lowdefy Inc, You agree that You shall provide applicable Usage
Data via email or other electronic means on a monthly basis or as otherwise
requested by Lowdefy using tools or instructions provided by Lowdefy. If an
inspection or audit uncovers additional usage by You for which fees are owed
under this Agreement, then You shall pay for such additional usage at
Lowdefy, Inc’s then-current rates.

5. Trial License. If You have signed up for a trial or evaluation of Lowdefy
Commercial Edition, Your License to Lowdefy Commercial Edition is granted
without charge for the trial or evaluation period specified when You signed up,
or if no term was specified, for thirty (30) calendar days, provided that Your
License is granted solely for purposes of Your internal evaluation of Lowdefy
Commercial Edition during the trial or evaluation period (a "Trial License").
You may not use Lowdefy Commercial Edition under a Trial License more than once
in any twelve (12) month period. Lowdefy, Inc may revoke a Trial License at any
time and for any reason. Sections 3, 4, 9 and 11 of this Agreement do not apply
to Trial Licenses.

6. Redistribution. You may reproduce and distribute copies of the Work or
Derivative Works thereof in any medium, with or without modifications, and in
Source or Object form, provided that You meet the following conditions:

(a) You must give any other recipients of the Work or Derivative Works a copy of
this License; and

(b) You must cause any modified files to carry prominent notices stating that
You changed the files; and

(c) You must retain, in the Source form of any Derivative Works that You
distribute, all copyright, patent, trademark, and attribution notices from the
Source form of the Work, excluding those notices that do not pertain to any part
of the Derivative Works; and

(d) If the Work includes a "NOTICE" text file as part of its distribution, then
any Derivative Works that You distribute must include a readable copy of the
attribution notices contained within such NOTICE file, excluding those notices
that do not pertain to any part of the Derivative Works, in at least one of the
following places: within a NOTICE text file distributed as part of the
Derivative Works; within the Source form or documentation, if provided along
with the Derivative Works; or, within a display generated by the Derivative
Works, if and wherever such third-party notices normally appear. The contents of
the NOTICE file are for informational purposes only and do not modify the
License. You may add Your own attribution notices within Derivative Works that
You distribute, alongside or as an addendum to the NOTICE text from the Work,
provided that such additional attribution notices cannot be construed as
modifying the License.

You may add Your own copyright statement to Your modifications and may provide
additional or different license terms and conditions for use, reproduction, or
distribution of Your modifications, or for any such Derivative Works as a whole,
provided Your use, reproduction, and distribution of the Work otherwise complies
with the conditions stated in this License.

(e) Commercial Derivative Works: Derivative Works of Lowdefy Commercial Edition
("Commercial Derivative Works") may be made, reproduced and distributed in any
medium, with or without modifications, in Source or Object form, provided that
each Commercial Derivative Work will be considered to include a License to
Lowdefy Commercial Edition and thus will be subject to the payment of fees to
Lowdefy, Inc by any user of the Commercial Derivative Work.

7. Submission of Contributions. Unless You explicitly state otherwise, any
Contribution intentionally submitted for inclusion in Lowdefy by You to
Lowdefy, Inc shall be under the terms and conditions of
https://cla-assistant.io/lowdefy/lowdefy (which is based off of the Apache
License), without any additional terms or conditions, payments of royalties or
otherwise to Your benefit. Notwithstanding the above, nothing herein shall
supersede or modify the terms of any separate license agreement You may have
executed with Lowdefy, Inc regarding such Contributions.

8. Trademarks. This License does not grant permission to use the trade names,
trademarks, service marks, or product names of Licensor, except as required for
reasonable and customary use in describing the origin of the Work and
reproducing the content of the NOTICE file.

9. Limited Warranty.

(a) Warranties. Lowdefy, Inc warrants to You that: (i) Lowdefy Commercial
Edition will materially perform in accordance with the applicable documentation
for ninety (90) days after initial delivery to You; and (ii) any professional
services performed by Lowdefy, Inc under this Agreement will be performed in a
workmanlike manner, in accordance with general industry standards.

(b) Exclusions. Lowdefy, Inc’s warranties in this Section 9 do not extend to
problems that result from: (i) Your failure to implement updates issued by
Lowdefy, Inc during the warranty period; (ii) any alterations or additions
(including Commercial Derivative Works and Contributions) to Lowdefy not
performed by or at the direction of Lowdefy, Inc; (iii) failures that are not
reproducible by Lowdefy, Inc; (iv) operation of Lowdefy in violation of this
Agreement or not in accordance with its documentation; (v) failures caused by
software, hardware or products not licensed or provided by Lowdefy, Inc
hereunder; or (vi) Third Party Works.

(c) Remedies. In the event of a breach of a warranty under this Section 9,
Lowdefy, Inc will, at its discretion and cost, either repair, replace or
re-perform the applicable Works or services or refund a portion of fees
previously paid to Lowdefy, Inc that are associated with the defective Works
or services. This is Your exclusive remedy, and Lowdefy, Inc’s sole liability,
arising in connection with the limited warranties herein.

10. Disclaimer of Warranty. Except as set out in Section 9, unless required by
applicable law, Licensor provides the Work (and each Contributor provides its
Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY
KIND, either express or implied, arising out of course of dealing, course of
performance, or usage in trade, including, without limitation, any warranties or
conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, CORRECTNESS,
RELIABILITY, or FITNESS FOR A PARTICULAR PURPOSE, all of which are hereby
disclaimed. You are solely responsible for determining the appropriateness of
using or redistributing Works and assume any risks associated with Your exercise
of permissions under the applicable License for such Works.

11. Limited Indemnity.

(a) Indemnity. Lowdefy, Inc will defend, indemnify and hold You harmless
against any third party claims, liabilities or expenses incurred (including
reasonable attorneys’ fees), as well as amounts finally awarded in a settlement
or a non-appealable judgement by a court ("Losses"), to the extent arising from
any claim or allegation by a third party that Lowdefy, Inc infringes
or misappropriates a valid United States patent, copyright or trade secret right
of a third party; provided that You give Lowdefy, Inc: (i) prompt written
notice of any such claim or allegation; (ii) sole control of the defense and
settlement thereof; and (iii) reasonable cooperation and assistance in such
defense or settlement. If any Work within Lowdefy becomes or, in
Lowdefy, Inc’s opinion, is likely to become, the subject of an injunction,
Lowdefy, Inc may, at its option, (A) procure for You the right to continue
using such Work, (B) replace or modify such Work so that it becomes
non-infringing without substantially compromising its functionality, or, if (A)
and (B) are not commercially practicable, then (C) terminate Your license to the
allegedly infringing Work and refund to You a prorated portion of the prepaid
and unearned fees for such infringing Work. The foregoing states the entire
liability of Lowdefy, Inc with respect to infringement of patents, copyrights,
trade secrets or other intellectual property rights.

(b) Exclusions. The foregoing obligations shall not apply to: (i) Works modified
by any party other than Lowdefy, Inc (including Commercial Derivative Works
and Contributions), if the alleged infringement relates to such modification,
(ii) Works combined or bundled with any products, processes or materials not
provided by Lowdefy, Inc where the alleged infringement relates to such
combination, (iii) use of a version of Lowdefy other than the version that was
current at the time of such use, as long as a non-infringing version had been
released, (iv) any Works created to Your specifications, (v) infringement or
misappropriation of any proprietary right in which You have an interest,
(vi) Third Party Works, or (vii) Your violation of any law or regulation or of
any third party rights, including infringement, libel, misappropriation, or
other violation of any third party’s intellectual property or other legal
rights. You will defend, indemnify and hold Lowdefy, Inc harmless against any
Losses arising from any such claim or allegation, subject
to conditions reciprocal to those in Section 11(a).

12. Limitation of Liability. In no event and under no legal or equitable theory,
whether in tort (including negligence), contract, or otherwise, unless required
by applicable law (such as deliberate and grossly negligent acts), and
notwithstanding anything in this Agreement to the contrary, shall Licensor or
any Contributor be liable to You for (i) any amounts in excess, in the
aggregate, of the fees paid by You to Lowdefy, Inc under this Agreement in the
twelve (12) months preceding the date the first cause of liability arose, or
(ii) any indirect, special, incidental, punitive, exemplary, reliance, or
consequential damages of any character arising as a result of this Agreement or
out of the use or inability to use the Work (including but not limited to
damages for loss of goodwill, profits, data or data use, work stoppage, computer
failure or malfunction, cost of procurement of substitute goods, technology or
services, or any and all other commercial damages or losses), even if such
Licensor or Contributor has been advised of the possibility of such damages.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.

13. Accepting Warranty or Additional Liability. While redistributing Works or
Derivative Works thereof, and without limiting your obligations under Section 6,
You may choose to offer, and charge a fee for, acceptance of support, warranty,
indemnity, or other liability obligations and/or rights consistent with this
License. However, in accepting such obligations, You may act only on Your own
behalf and on Your sole responsibility, not on behalf of any other Contributor,
and only if You agree to indemnify, defend, and hold Lowdefy, Inc and each
other Contributor harmless for any liability incurred by, or claims asserted
against, such Contributor by reason of your accepting any such warranty or
additional liability.

14. Your Ownership Rights. You shall retain all rights, title and interest in
and to applications created utilising Lowdefy and all Your data, content,
information and materials stored or processed by Lowdefy (“Your Data”). 
Nothing in this Agreement will confer on Lowdefy, Inc any right of ownership or
interest in any of Your Data, or the intellectual property rights therein.

15. Modification of this Agreement. Lowdefy, Inc may update the terms and
conditions of this Agreement from time to time with prior notice to You in
accordance with notice provisions in Section 16. The updated version of this
Agreement will be available at https://lowdefy.com/terms. Following such
notice, your continued use of Lowdefy on or after the date the updated version
of this Agreement is effective and binding, as indicated at the top of this
Agreement, constitutes your acceptance of the updated version of this
Agreement. If you do not agree to the updated version of this Agreement, you
must stop using the Lowdefy immediately, and if you are using a paid version of
Lowdefy, you may elect to receive a pro-rata refund of any prepaid fees
applicable to services not yet received. The updated version of this Agreement
supersedes all prior versions.

16. Notices. Unless otherwise agreed to by the parties, any notice,
authorisation, or consent required or permitted to be given or delivered under
this Agreement shall be in writing, in English and addressed and delivered to
Lowdefy, Inc at the address specified on the Lowdefy website or to You at the
address specified in the applicable Order Form. Notices shall be deemed to have
been received by a party and shall be effective: (i) on the fifth business day
after which such Notice is deposited prepaid in the local postal system;
(ii) on the day received if sent with a reputable, expedited overnight or
international courier or hand delivered or (iii) one business day after being
sent electronically with a confirmed delivery receipt. Either party may change
its address for receipt of Notice purposes upon issuance of Notice thereof in
accordance with this Section.

17. General.

(a) Relationship of Parties. You and Lowdefy, Inc are independent contractors,
and nothing herein shall be deemed to constitute either party as the agent or
representative of the other or both parties as joint venturers or partners for
any purpose.

(b) Export Control. You shall comply with the U.S. Foreign Corrupt Practices Act
and all applicable export laws, restrictions and regulations of the U.S.
Department of Commerce, and any other applicable U.S. and foreign authority.

(c) Assignment. This Agreement and the rights and obligations herein may not be
assigned or transferred, in whole or in part, by You without the prior written
consent of Lowdefy, Inc. Any assignment in violation of this provision is
void. This Agreement shall be binding upon, and inure to the benefit of, the
successors and permitted assigns of the parties.

(d) Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Delaware and the United States without regard to conflicts
of laws provisions thereof, and without regard to the Uniform Computer
Information Transactions Act.

(e) Attorneys’ Fees. In any action or proceeding to enforce rights under this
Agreement, the prevailing party shall be entitled to recover its costs, expenses
and attorneys’ fees.

(f) Severability. If any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect, that provision shall be limited or
eliminated to the minimum extent necessary so that this Agreement otherwise
remains in full force and effect and enforceable.

(g) Publicity. Notwithstanding anything to the contrary in this Agreement
Lowdefy, Inc may reference You as a Lowdefy user in its marketing and
promotional materials, including but not limited to the Lowdefy website.

(h) No Waiver. The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights.

(i) This Agreement together with all applicable Order Forms and the Support
Services comprises the entire agreement between the parties regarding the
subject matter hereof and supersedes and merges all prior proposals
understandings and all other agreements, oral and written, between the parties
relating to the subject matter of this Agreement. Lowdefy, Inc’s acceptance of
any document submitted by You to Lowdefy, Inc shall not be construed as an
acceptance of provisions which are in any way in conflict or inconsistent with,
or in addition to, this Agreement unless such terms are separately and
specifically accepted in writing by an authorized representative of Lowdefy.