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License

SWITSTACK MOKA LICENSE

IMPORTANT - READ CAREFULLY. THIS TRIAL AND EVALUATION LICENSE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN SWITSTACK, INC. (“SWITSTACK”) AND THE OTHER PARTY AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (“LICENSEE” OR “YOU”). THIS AGREEMENT APPLIES TO ANY SWITSTACK’S NO-CHARGE SOFTWARE PRODUCT (THE “SOFTWARE”) YOU DOWNLOAD OR ACCESS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD NOT PROCEED WITH SETTING UP YOUR ACCESS TO THE SOFTWARE. DO NOT CLICK ANY BUTTON TO SET UP ACCESS TO THE SOFTWARE ON ANY PAGE RUN BY SWITSTACK UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU CONTINUE TO SET UP ACCESS TO THE SOFTWARE, YOU WILL BE GRANTED ACCESS TO THE SOFTWARE, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”). All references in this Agreement to the “sale” or “purchase” of any Software or Service shall mean the sale or purchase of a license to such Software or Service.

  1. Ownership of Intellectual Property; License Grants; Restrictions; Support.

a. Ownership by switstack.

The Software licensed pursuant to this Agreement, and any instruction manuals, user guides, and other information to be made available to Licensee by switstack from time to time relating to the Software (“Documentation”), contain proprietary and confidential information of switstack and its licensors. Except to the extent licenses are expressly granted hereunder, switstack and its licensors retain all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to the Software and Documentation. In addition, switstack shall own all right, title and interest, including all intellectual property rights, in and to (i) any intellectual property created by switstack (whether or not delivered to Licensee pursuant to this Agreement) in the course of providing the Software or any support services under this Agreement and (ii) without limiting the foregoing, any output or content produced by the Software, except to the extent that such output or content is Licensee Data.

b. License Grant by switstack.

Subject to and in consideration of timely payment by the Licensee of the license fees hereunder (if any) and of Licensee’s compliance with the other terms and conditions of this Agreement, switstack hereby grants to the Licensee and its Authorized Users, solely during the evaluation period identified on Exhibit A (the “Evaluation Period”), a royalty free, limited, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license, without the right to sublicense, to (i) install and use the Software solely for internal use in a test environment to determine the usability, desirability, functionality, and compatibility of Software with Licensee’s applications and operations environment, and not for production or commercial use, and (ii) use the Documentation in connection with the rights granted in this section. Licensee will have access to Documentation solely as determined by switstack. For purposes of this Agreement, “Authorized User” means any individual (including Licensee’s employees, agents, contractors, suppliers of services, and customers, in each case to the extent that Licensee’s license includes, and Licensee pays for, such individual) who is authorized to access the Software and Documentation and exercise the rights licensed by Licensee. Each Authorized User must use a unique identity to access and use the Software unless otherwise licensed, and may access the services only to the extent licensed by Licensee.

c. Restrictions to License Grant by switstack.

Licensee agrees that it, and all Authorized Users, will not without express written permission of switstack: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from the Software or any part thereof; (b) electronically transmit the Software from one computer to another or over a network or make the Software or Documentation available to, or use the Software or Documentation for the benefit of, anyone other than Licensee; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Software or Documentation, or include any Software or Documentation in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Software or Documentation in a way that circumvents any contractual usage limit; (e) copy the Software or Documentation or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement or by an applicable license); (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or Documentation; (g) except as expressly provided for in this Agreement, use the Software (or any component thereof) in a production environment or in connection with any deployed computer system, including without limitation commercial, for-profit, or publicly accessible system or for commercial or revenue generating purposes; or (h) access or use the Software or Documentation in order to commercialize a competitive product or service. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of anybody accessing the Software using the credentials of any Licensee user.

d. Ownership by Licensee.

Except to the extent licenses are expressly granted hereunder, Licensee retains all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (i) its products and services; and (ii) any non-public data provided by Licensee to switstack to enable switstack to provide the Software and related services (the “Licensee Data”).

e. License Grants by Licensee.

Licensee hereby grants to switstack a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty-free license to use, copy, modify and perform Licensee Data as reasonably required to operate and provide the Software and related services as agreed upon in this Agreement. switstack shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related services, systems and technologies, and switstack will be free to (i) use such information and data to improve and enhance the Software, and (ii) except for data that is Customer Confidential Information disclose such data solely in aggregate or other de-identified form (from which neither Licensee cannot be identified) in connection with its business.

f. Feedback.

As partial consideration for the license grant from switstack, Licensee will use reasonable efforts to report to switstack any “bugs” or reproducible errors in the Software as they are encountered. Licensee agrees that any information or feedback Licensee may provide to switstack related to the Software is non-confidential and Licensee grants switstack a non-exclusive, worldwide, fully paid up, perpetual and irrevocable license to use, share, commercialize, and otherwise exploit this information/feedback in switstack’s business activities without restriction and without payment or accounting to Licensee or any third party.

g. Support.

This Agreement does not entitle Licensee to support. Despite the foregoing, switstack may in its sole discretion provide technical support and guidance to Licensee to enable Licensee’s licensed use of the Software.

h. License Infrastructure; Interaction with Third-Party Applications and Platforms.

Licensee is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like. Further, Licensee is solely responsible for obtaining all services, licenses and technologies necessary to access and use the Software, whether operated directly by Licensee or through the use of third-party services. Licensee may connect, install or enable content or applications and software products that interoperate with the Software and are provided by a third-party or Licensee, and not switstack (“Non-switstack Products”). Any acquisition and use by License or its Authorized Users of such Non-switstack Products is solely the responsibility of Customer and the applicable provider. switstack does not warrant or offer support for Non-switstack Products. Licensee further acknowledges that providers of such Non-switstack Products may have access to License Data in connection with the interoperation and support of such Non-switstack Products with the Software. To the extent Licensee authorizes the access or transmission of Licensee Data through a Non-switstack Product, switstack will not be responsible for any use, disclosure, modification or deletion of such Licensee Data. For purposes of clarity, switstack does not grant any right to use the Software to develop contact or contactless payment applications designed for use on any payment terminal. If Licensee desires to use the Software to develop contact or contactless payment applications designed for use on a payment terminal, Licensee should contact the applicable payment system.

  1. Confidentiality.

a. “Confidential Information” means the Software, plus any oral, written, graphic or machine readable information including, but not limited to, the Software and Documentation which relates to inventions, ideas, patents, patent applications, business methods, research, product plans, products, developments, processes, designs, drawings, engineering, formulae, markets, regulatory information, formulations, vendors, business plans, agreements with third parties, services, customers, marketing or finances of switstack, which is disclosed by or on behalf of switstack whether on or after the date hereof, together with any reports, derivatives, analyses, compilations, memoranda, notes and any other writings prepared by Licensee or its representatives which contain or reflect such information and is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.

b. Despite the foregoing, Confidential Information does not include any of the foregoing items which has become publicly and widely known and made generally available through no wrongful act of Licensee.

c. Licensee will not, during or subsequent to the term of this Agreement, (i) use switstack’s Confidential Information for any purpose whatsoever other than the performance of the obligations contemplated in this Agreement or (ii) disclose switstack’s Confidential Information to any third party. Licensee agrees that all Confidential Information of switstack’s will remain the sole property of switstack. Licensee also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. Without switstack’s prior written approval, Licensee will not directly or indirectly disclose to anyone other than its advisors and actual or potential investors the existence of this Agreement or any specific terms of this Agreement.

  1. Fees; Payments.

a. Invoicing and Payment.

If any fee is due with respect to the Software, Licensee will pay such fees within thirty days of accessing the Software. Except in the case of material breach of this Agreement by switstack, all payments accrued or made under this Agreement are non-cancelable and nonrefundable. switstack shall be entitled to reimbursement for any costs associated with the collection of any past-due balance.

b. Taxes.

All fees for the Software (if any) are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Software licensed pursuant to this Agreement will be paid by the Licensee (except for taxes imposed on switstack based on switstack’s income).

  1. No Indemnities; No Warranties; Disclaimer.

THIS AGREEMENT DOES NOT ENTITLE LICENSEE TO ANY INDEMNIFICATION OF ANY KIND. THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS.” SWITSTACK MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SWITSTACK DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR SUCCEED IN RESOLVING ANY PROBLEM. LICENSEE AGREES THAT USE OF THE SOFTWARE IS AT LICENSEE’S OWN RISK.

  1. Limitation of Liability.

TO THE EXTENT NOT PROHIBITED BY LAW: (I) IN NO EVENT SHALL SWITSTACK’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE GREATER OF (A) THE AMOUNTS ACTUALLY PAID BY LICENSEE TO SWITSTACK UNDER THIS AGREEMENT AND (B) FIFTY U.S. DOLLARS; AND (II) IN NO EVENT SHALL SWITSTACK BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES. DESPITE THE FOREGOING, IN NO EVENT SHALL SWITSTACK BE LIABLE FOR ANY INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, LOST REVENUE OR PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVCIES (WHETHER SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER) OR FOR ANY SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT.

  1. Term and Termination.

a. Term of Agreement and Orders. This Agreement shall begin on the Effective Date and shall continue in force for the Evaluation Period, unless validly terminated earlier.

b. Termination. Either party may terminate this Agreement at any time upon written notice to the other party.

c. Effect of Termination. Upon termination or expiration of this Agreement, (i) all licenses granted hereunder shall cease and (ii) Licensee shall immediately uninstall or destroy (or at the sole option of switstack, return) all copies of the Software and Documentation in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to switstack that the Licensee has complied with such obligation.

d. Survival.

Sections 1b, 1c, 1d, 1h, 2-5, 6c, 6d, 7 and 9, all associated definitions, and all accrued rights to payment (if any), shall survive any termination or expiration of this Agreement.

  1. Import and Export Regulations.

Licensee will comply with all applicable United States laws and regulations controlling the export of licensed commodities and technical data relating to this Agreement. Among other things, these laws and regulations may prohibit or require a license for the export or retransfer of certain commodities and technical data to specified countries, entities and persons. Licensee understands it may be held responsible for any violation of such laws and regulations, and Licensee agrees to indemnify, defend and hold switstack harmless for the consequences of any such violation.

  1. Personal Information.

Each party agrees to comply with applicable provisions of laws protecting the privacy of individuals. The parties agree that, unless otherwise agreed to in writing, Licensee shall not provide to switstack any information, content and data provided by or on behalf of Licensee and made available or otherwise distributed through use of the Software (i) that may be used to identify any individual or that may be protected under law designed to protect the privacy of any individual or (ii) that includes any health, payment card or other sensitive personal information.

  1. Miscellaneous.

a. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. The parties agree that each is an independent contractor and neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

b. No failure or delay in exercising any right hereunder will operate as a waiver, thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.

c. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or upon confirmed delivery when sent by email to the email address as may be provided by one party to the other from time to time.

d. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.

e. This Agreement is not assignable or transferrable by Licensee without switstack’s prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in the courts of the city and county of San Francisco in the state of California, USA.

f. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.

g. Unless explicitly stated otherwise all files in this repository are licensed under the SWITSTACK MOKA LICENSE.

THIS AGREEMENT, INCLUDING ALL EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF.