appMobi SDK License Agreement

1.1          "FlyCast" means FlyCast Inc., a Pennsylvania corporation with principal place of business at 35-37 East Orange Street, Lancaster, PA 17603, United States.

1.2          The appMobi Software Development Kit (referred to in this Agreement as the "SDK") is a set of specifications, documentation, development utilities, and sample code for use by developers creating applications for smart phones.

1.3          The appMobi SDK is licensed to you subject to the terms of this Agreement. This Agreement forms a legally binding contract between you and FlyCast in relation to your use of the SDK.

1.4          “Content” means any software, data, or application that you create using appMobi or have stored on Amazon Web Services servers.

2. ACCEPTING THIS AGREEMENT

2.1          In order to use the SDK, you must first agree to this Agreement. You may not use the SDK if you do not accept this Agreement.

2.2          You may not use the SDK and may not accept the Licensing Agreement 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.

2.3          If you are agreeing to be bound by this Agreement on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not agree to this Licensing Agreement or use the SDK on behalf of your employer or other entity.

3. SDK LICENSE GRANT

3.1          Subject to the terms of this Agreement, FlyCast grants you a limited, worldwide, royalty-free, non- assignable and non-exclusive license to use the SDK.

3.2          You agree that FlyCast or other third parties 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 other proprietary rights. FlyCast reserves all rights not expressly granted to you.

3.3          Except to the extent required by applicable third party licenses, you may not 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. Except to the extent required by applicable third party licenses, you may not combine any part of the SDK with other software, or distribute any software or device incorporating a part of the SDK.

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

3.5          You agree that the form and nature of the SDK that FlyCast provides may change without prior notice to you and that future versions of the SDK may be incompatible with applications developed on previous versions of the SDK. You agree that FlyCast may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to you or to users generally at FlyCast's sole discretion, without prior notice to you.

3.6          Nothing in this Agreement gives you a right to use any of FlyCast's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.

3.7          You agree that 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. YOUR USE OF THIS SDK

4.1          You may 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).

4.2          FlyCast obtains no right, title or interest from you (or your licensors) under this Agreement in or to any software applications that you develop using the SDK, including any intellectual property rights that subsist in those applications.

4.3          If you use the SDK to develop applications for general public users, you will protect the privacy and legal rights of those users. If the users provide you with user names, passwords, or other login information or personal information, your must make the users aware that the information will be available to your application, and you must provide legally adequate privacy notice and protection for those users. If your application stores personal or sensitive information provided by users, it must do so securely. If the user provides your application with FlyCast Account information, your application may only use that information to access the user's FlyCast Account when, and for the limited purposes for which, the user has given you permission to do so.

4.4          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, FlyCast or any mobile communications carrier.

4.5          You agree that you are solely responsible for (and that FlyCast has no responsibility to you or to any third party for) any Content through your use of the SDK or applications made using the SDK, and for the consequences of your actions (including any loss or damage which FlyCast may suffer) by doing so.

4.6          You agree that you are solely responsible for (and that FlyCast has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, 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 FlyCast or any third party may suffer) of any such breach.

4.7          You agree to abide by all terms and conditions of every application store to which your application is posted.

4.8          You will not transmit worms, viruses, or any other code of a destructive nature.

4.9          You will use then SDK to upload, post, host, or transmit unsolicited email, SMS, or “spam” messages.

4.10        We will not disclose Content, except if you expressly authorize us to do so or to comply with the Agreement or at the request of a governmental or regulatory body, subpoena or court order.

5. YOUR DEVELOPER CREDENTIALS

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

6. PRIVACY AND INFORMATION

FlyCast may collect certain usage statistics from your application including but not limited to a unique identifier, associated IP address, version number of the application, and information on which tools and/or services in the SDK are being used and how they are being used.

7. THIRD PARTY APPLICATIONS

7.1          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 FlyCast is not responsible for those applications, data, content, or resources.  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.  FlyCast 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.

7.2          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          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, this Agreement does not affect your legal relationship with these third parties.

8. TERMINATING THIS AGREEMENT

8.1          This Agreement will continue to apply until terminated by either you or FlyCast as set out below.

8.2          If you want to terminate this Agreement, you may do so at any time by ceasing your use of the SDK and any relevant developer credentials.

8.3          FlyCast may at any time, terminate this Agreement at FlyCast’s sole discretion.

8.4          When this Agreement comes to an end, all of the legal rights, obligations and liabilities that you and FlyCast have benefited from, been subject to (or which have accrued over time while this Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraphs 4, 7, 8, and 13 shall continue to apply to such rights, obligations and liabilities indefinitely.

8.5          All Content will be deleted upon termination upon this agreement.

9. DISCLAIMER OF WARRANTIES

9.1          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 FLYCAST.

9.2          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 RESULTS FROM SUCH USE.

9.3          FLYCAST 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.

10. PAYMENT TERMS

Billing for the SDK is on a monthly basis and is nonrefundable.  Payment must be made using the Amazon Web Service.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.

11. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT FLYCAST, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT FLYCAST OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

12. INDEMNIFICATION

To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless FlyCast, 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 you develop on the SDK that is accused of infringing any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defaming any person or violating their rights of publicity or privacy, and (c) any non-compliance by you with this Agreement.

13. CHANGES TO THIS AGREEMENT

FlyCast may make changes to the Agreement as it distributes new versions of the SDK. When these changes are made, FlyCast will make a new version of the Agreement available on the website where the SDK is made available.

14. GENERAL TERMS

14.1        This Agreement constitutes the whole legal agreement between you and FlyCast and governs your use of the SDK (excluding any services which FlyCast may provide to you under a separate written agreement), and completely replaces any prior agreements between you and FlyCast in relation to the SDK.

14.2        If FlyCast does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which FlyCast has the benefit of under any applicable law), this will not be taken to be a formal waiver of FlyCast's rights and that those rights or remedies will still be available to FlyCast.

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

14.4        Each member of the group of companies of which FlyCast is the parent or subsidiary shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement 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 this Agreement.

14.5        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 ON DESTINATIONS, END USERS AND END USE.

14.6        The rights granted in this Agreement may not be assigned or transferred by you without FlyCast’s prior written approval. You shall not be permitted to delegate their responsibilities or obligations under this Agreement without FlyCast’s prior written approval.

14.7        This Agreement, and your relationship with FlyCast under this Agreement, shall be governed by the laws of the Commonwealth of Pennsylvania without regard to its conflict of laws provisions. You and FlyCast agree to submit to the exclusive jurisdiction of the courts located within the county of Lancaster, Pennsylvania to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that FlyCast shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.