DittoLive Incorporated (“Ditto”, “we”, “us” or “our") provides a platform that enables you to deliver collaborative and real-time experiences in online, offline, and peer-to-peer modes in enterprise mobile, web and IoT applications (the “Ditto Platform”). The Ditto Platform consists of the Ditto software development kit (“Ditto SDK”) and the Ditto cloud service (“Cloud Service”).
We are happy to provide you with a trial account for you to evaluate the Ditto Platform. Before you download, access, or use any portion of the Ditto Platform, we need you to agree to a special set of terms. Welcome to the Ditto Platform Evaluation Terms (this "Agreement").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, ACCESSING, OR USING ANY OF OUR SOFTWARE OR SERVICES. THESE TERMS AND CONDITIONS GOVERN YOUR ACCESS AND USE OF THE SOFTWARE AND CLOUD SERVICE, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU AND PROVIDE ACCESS TO THE CLOUD SERVICE IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY DOWNLOADING, INSTALLING, ACCESSING OR USING ANY OF THE SOFTWARE OR THE CLOUD SERVICE OR BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND IT TO THIS AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE OR PROVIDE ACCESS TO THE CLOUD SERVICE, AND YOU ARE PROHIBITED FROM DOWNLOADING, INSTALLING, ACCESSING OR USING THEM.
Table of Contents
- Definitions
- License Grant
- Access and Use Rights
- Intellectual Property
- Restrictions
- Usage Rules
- Data
- Feedback
- Software Delivery
- Term and Termination
- No Warranty;Disclaimer
- Limitation of Liability
- Confidentiality
- Government Users
- Export Control
- Miscellaneous
1. Definitions
Here are some definitions we use in this Agreement:
“Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.
"Agreement Effective Date" means earlier of the date that you (i) indicate acceptance to the terms and conditions of this Agreement, or (ii) download, install, or use any Software or (iii) access or use the Cloud Service.
“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Provider’s Confidential Information includes technical or performance information about the Cloud Service, and Customer’s Confidential Information includes Customer Data.
“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Cloud Service accounts.
"Documentation" means any manuals, documentation and other supporting materials related to the Software or the Cloud Service that we make generally available to our customers.
“Early Access Period” means the period during which we make the Cloud Service generally available on a free trial, beta, or early access basis.
“Evaluation Term” means the date that we provide you with credentials to access and use the Cloud Service until the end of the Early Access Period.
“High Risk Activities” means activities where use or failure of the Cloud Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.
"License Token" means a data file utilized by the Software's access control mechanism that allows you to use the Software during the Evaluation Term.
“Materials” means the Software, License Token, the Cloud Service and related Ditto technology, and the Documentation.
“Personal Data” means Customer Data relating to an identified or identifiable natural person.
“Sensitive Data” means (a) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented), (b) credit, debit, bank account or other financial account numbers, (c) social security numbers, driver’s license numbers or other government ID numbers and (d) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation.
"Software" means any object code and sample source code that we make available to you in the Ditto SDK along with any Updates that we provide you or that you can access under this Agreement.
"Update" means a Software release that we make generally available to our customers.
“Usage Data” means Provider’s technical logs, data and learnings about Customer’s use of the Cloud Service, but excluding Customer Data.
“User” means anyone that Customer allows to use its accounts for the Cloud Service, who may include (a) employees, advisors and contractors of Customer and its Affiliates and (b) others if permitted in this Agreement or the Documentation.
2. License Grant
2.1 License.
Subject to your compliance with the terms of this Agreement, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable license during the Evaluation Term to install, execute, reproduce, and use the Software and to use and reproduce the License Token and Documentation, in each case solely for the purpose of (a) developing prototype non-production use applications that utilize the Software or the Cloud Service, or both, and (b) evaluating whether to purchase products or services from us (collectively, the “Permitted Use”). There is no fee associated with this evaluation license.
2.2 Retention of Notices.
If you reproduce any of the Materials as permitted in this Agreement, you must reproduce all copyright and other proprietary notices that are on the copies we make available to you.
2.3 License Token Expiration.
You acknowledge that any License Token we make available to you under this Agreement expires after a period of time and is not for production use. If we provide you with a replacement License Token under this Agreement, you must install the replacement License Token to continue using the Software.
3. Access and Use Rights
Subject to your compliance with the terms of this Agreement, we hereby grant you the right to access and use the Cloud Service for solely for the Permitted Use. This includes rights to copy and use Documentation as part of your authorized use of the Cloud Service. You will comply with any requirements set forth in the Documentation in using the Cloud Service. may permit Users to use the Cloud Service on its behalf. You are responsible for provisioning and managing your User accounts, for your Users’ actions through the Cloud Service and for their compliance with this Agreement. You will ensure that Users keep their login credentials confidential, and you will promptly notify us upon learning of any compromise of User accounts or credentials.
4. Intellectual Property
As between us, we own all right, title and interest in and to the Materials, and any intellectual property rights associated with them and with our company. We reserve all rights in and to the Materials that we do not expressly grant you in this Agreement.
5. Restrictions
You agree not to, nor permit nor authorize any third party to: (i) sublicense, sell, rent, lease, transfer, assign, or distribute the Materials to third parties; (ii) host the Materials for the benefit of third parties; (iii) disclose or permit any third party to use the Materials; (iv) hack or modify any License Token, or try to avoid or change any license registration process we may implement; (v) modify or create derivative works of the Software or Cloud Service, provided, however, that incorporating the Software as a library in connection with the Permitted Use and in accordance with the Documentation during the Evaluation Term is expressly permitted; (vi) disassemble, decompile, or otherwise reverse engineer the Software or the Cloud Service attempt to derive any source code from any executable code, in whole or in part, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; (vii) modify, obscure, or delete any proprietary rights notices included in or on the Materials; or (viii) use or copy the Materials in a manner not expressly permitted by this Agreement, including any use or copying in connection with a product or service that competes with the Software or the Cloud Service. In addition, with respect to the Cloud Service, you will not and will not permit anyone else to: (a) grant non-Users access to the Cloud Service or use the Cloud Service to provide a hosted or managed service to others or (b) conduct security or vulnerability tests of the Cloud Service, interfere with its operation or circumvent its access restrictions.
6. Usage Rules
6.1 Compliance.
Customer represents and warrants that it has all rights necessary to use Customer Data with the Cloud Service and grant the rights in Section 7.1 (Limited Use), without violating third-party intellectual property, privacy or other rights.
6.2 High Risk Activities & Sensitive Data.
Unless expressly permitted in the Documentation, you:
- will not use the Cloud Service for High Risk Activities,
- will not submit Sensitive Data to the Cloud Service, and
- acknowledge that the Cloud Service is not designed for (and we have no liability for) use prohibited in this Section 6.2.
7. Data
7.1 Limited Use.
Subject to this Agreement, we will access and use Customer Data solely to provide and maintain the Cloud Service and to support your use of the Cloud Service under this Agreement. This includes sharing Customer Data as you direct through the Cloud Service, but we will not otherwise disclose Customer Data with third parties except as permitted in this Agreement.
7.2 Security.
We will implement and maintain appropriate technical and organizational security measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data. Our current technical and organizational security measures are available by contacting support@ditto.live.
7.3 Personal Data.
Each party will comply with all applicable laws relating to its processing of Personal Data. In addition, the parties will adhere to the Data Protection Addendum (the “DPA”) available at ditto.live/data-processing-agreement in connection with any such Personal Data.
7.4 Usage Data.
We may collect Usage Data and use it to operate, improve and support the Cloud Service and for other lawful business practices. However, we will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer, its Users or any other person and (b) aggregated with data across other customers.
7.5 Data Export
During the Evaluation Term, Customer may export Customer Data from the Cloud Service as described in the Documentation.
8. Feedback
If you provide us with feedback, comments, or suggestions concerning the Software, Cloud Service or other Ditto products and services (collectively, "Feedback"), we may use such Feedback without restriction or obligation. Any such feedback is provided “AS IS” and Provider will not publicly identify Customer as the source of feedback without Customer’s permission.
9. Software Delivery
We will make the Software, License Token, and Documentation available for you to download or copy. As Updates to the Software become available, we will make those available for you to download, as well. You are responsible for (i) installing the Software and all available Updates and (ii) maintaining the confidentiality of the License Token.
10. Term and Termination
10.1 Term.
This Agreement begins on the Agreement Effective Date and, unless terminated earlier as provided for herein, will remain in effect, for remainder of the Evaluation Term. This Agreement will automatically expire without the requirement of notice at the end of the Evaluation Term.
10.2 Termination.
Either of us can terminate this Agreement at any time, with or without cause, upon five days' written notice to the other. We can terminate this Agreement immediately upon written notice to you if you breach any provision of this Agreement.
10.3 Effect of Termination.
When this Agreement terminates or expires: (i) you will no longer have the right to use the Software, License Token, or Cloud Service, and any rights or licenses we grant you in this Agreement will immediately cease to exist as of the date of termination or expiration; (ii) you will destroy all copies of the Software and License Token in your possession or control, and certify in writing to us that you have done so; and (iii) the recipient of Confidential Information will promptly return or destroy Confidential Information in its possession or control, except, with respect to Customer Data, we will return such Customer Data to you upon your request within 30 days following such termination or expiration and thereafter will delete such Customer Data. Notwithstanding the foregoing, the recipient may retain Confidential Information in accordance with its standard backup or record retention policies or as required by law, subject to Section 7.2 (Security), Section 13 (Confidentiality) and, with respect to Customer Data, the DPA.
10.4 Survival.
Sections 1, 7.4, 8, 10.3, and 11 through 16 will survive the termination or expiration of this Agreement for any reason. In addition, Sections 7.2 and 7.3 will survive the termination or expiration of this Agreement for any reason with respect to any Customer Data retained pursuant to Section 10.3.
11. No Warranty;Disclaimer
You acknowledge that the Materials are being provided "AS IS", and without warranty of any kind, express or implied. To the maximum extent permitted by applicable law, we hereby specifically disclaim all warranties with respect to the materials, whether express, implied, or statutory, including but not limited to warranties of merchantability, fitness for a particular purpose, title, non-infringement, or any warranties or conditions arising out of course of dealing or usage of trade.
12. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will we be liable to you or to any third party for any special, incidental, punitive or consequential damages (including loss of use, data, business or profits) arising out of or in connection with this evaluation agreement or your installation, access, use, or inability to access or use the Software, License Token or Cloud Service, or for any error or defect in the materials, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not we have been advised of the possibility of such loss or damage. We and our affiliates and licensors are not responsible under this Agreement to you or any third party for any compensation, reimbursement or direct damages arising in connection with: (a) your inability to use the Cloud Service; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments by you in connection with this Agreement or your use of or access to the Cloud Service; or (d) any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to store any of your content or other data. Our entire liability arising out of or related to this agreement will exceed $1,000. The parties have agreed that these limitations will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
13. Confidentiality
13.1 Use and Protection.
As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights in this Agreement, (b) not disclose Confidential Information to third parties without discloser’s prior approval, except as permitted in this Agreement, and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.
13.2 Permitted Disclosures.
The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 13 and they are bound to confidentiality obligations no less protective than this Section 13.
13.3 Exclusions.
These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.
13.4 Remedies.
Breach of this Section 13 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section, the discloser is entitled to seek appropriate equitable relief, including an injunction without any obligation to post a bond, in addition to other remedies.
13.5 Required Disclosures.
The recipient may disclose Confidential Information (including Customer Data) to the extent required by applicable law, court order, administrative tribunal, or regulatory authority. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.
14. Government Users
The Software, Cloud Service, and Documentation are “commercial items” as that term is defined at FAR 2.101. If You are a Federal agency of the US Government (“Government”), including any executive, legislative, or judicial agency, or anyone acquiring on behalf of such agency, Ditto provides the Software, Cloud Service, and Documentation, including any related technical data, in accordance with the following: the Government acquires, in accordance with FAR 12.211a and FAR 12.212, or DFARS 227.7202-3, as applicable, only those rights in technical data and software customarily provided to the public as provided in this Agreement, except that DFARS 252.227-7015 applies in the case of acquisition by or on behalf of any agency within the Department of Defense. This Section 14 is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
15. Export Control
The parties acknowledge that the Materials may be subject to U.S. and other countries’ export jurisdictions. Each party will comply with all laws and regulations applicable to the import or export of the Materials, including, but not limited to, the U.S. Export Administration Regulations, International Traffic in Arms Regulations, and sanctions regulations administered by the U.S. Office of Foreign Assets Control (collectively, “trade laws”). Customer will not take any action that causes Ditto to violate U.S. or other applicable trade laws. If Customer learns of a potential violation of trade laws relating to the performance of this Agreement, or a potential violation of the terms in this subsection, it will alert Ditto promptly after acquiring this knowledge. We may suspend or terminate this Agreement to the extent that we reasonably conclude that performance would cause us to violate applicable trade laws or put us at risk of becoming the subject of economic sanctions under such trade laws. You represent that you and your Users are not on any restricted party list under any applicable trade laws, including, but not limited to the U.S. Department of Commerce’s Table of Denial Orders or Entities list, or U.S Treasury Department’s list of Specially Designated Nationals.
16. Miscellaneous
16.1 Assignment.
You are not allowed to assign or transfer any of your rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent, and any attempt by you to do so without our consent will be null and void. We can assign this Agreement at our sole discretion.
16.2 Severability.
If any provision of this Agreement is deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that cannot be modified or reformed in this way will be deemed deleted, and the remaining provisions of this Agreement will continue in full force and effect.
16.3 Notices.
Any legal notice, request, demand or other communication required or permitted under this Agreement must be in writing, should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three business days after deposit with an internationally recognized express courier, with written confirmation of receipt.
16.4 Waiver.
A party's obligations under this Agreement can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.5 Force Majeure.
We will be excused from performing under this Agreement to the extent that we are unable to perform due to extraordinary causes beyond our reasonable control, including things like natural disasters or emergencies, strikes, lockouts, riots, acts of war, epidemics, or communication line and/or power failures.
16.6 Independent Contractors.
Our relationship with you with respect to the subject matter of this Agreement is that of an independent contractor. Nothing contained in this Agreement will be deemed or construed in any manner to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.
16.7 Amendments; Entire Agreement.
No modification, change, or amendment of this Agreement will be binding upon the parties, unless both parties agree to the change in a writing signed by an authorized representative of each party. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter. Unless we execute a separate written agreement with you stating otherwise, the terms of any purchase order, written terms or conditions, or other document that you submit to us that contain terms that are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected by Ditto, and will be void and of no effect.