SDK End Use License Agreement and Terms of Use
This SDK End User License Agreement and Terms of Use (the “EULA”) sets out the terms under which OneSignal,
Inc. (“OneSignal” or “Company”) agrees to license its proprietary SDK to the Licensee reading and agreeing to
this EULA (the “Licensee”). Licensee signifies its agreement to this EULA by clicking through the acceptance
mechanism provided by Company (such as an “I Agree” or “I Accept” button), or by engaging in any other legally
sufficient behavior to signify acceptance. Please review these terms carefully, because they will bind you
with respect to your use of the EULA.
- License to the SDK Subject to Licensee’s compliance with these terms,
including the Restrictions in Section 2, Company grants Licensee a limited, worldwide,
royalty-free, term-limited, non-transferrable, and non-exclusive license to use the SDK within its
Applications and websites (collectively the “Properties”), or to use other APIs, web services and other
features provided by Company (the SDK and other such features collectively referred to as the “SDK”), in
order to send, optimize and manage push notifications to users of its Properties, and to use other related
functionality provided within the Properties intended for its use.
- Restrictions on Licensee’s Use of the SDK. Licensee agrees that its
license to the SDK is subject to the following conditions:
- Absent further agreement by the parties (which may be by email), Licensee will not use the SDK in
connection with any App that constitutes or promotes illegal gambling, adult media (i.e., pornography),
pirated content or content that violates a party’s intellectual property rights, tobacco products,
including ecigarettes, firearms or ammunition, or any product that is illegal in the jurisdiction in or
into which it is sold;
- Licensee will only use the SDK in connection with the Properties that it owns and operates, and shall
not sell, sublicense, give, rent, loan, lease, or otherwise make the SDK or its components available to
any third party without the Company’s prior express written consent;
- Licensee shall not (i) alter, hide, or remove any copyright, trademark, or other intellectual property
rights notice contained in the SDK; (ii) except as required to effectuate the rights granted under
sub-section (iii) herein, reverse engineer, decompile, disassemble, or otherwise translate or derive the
source code for the SDK, or attempt to do so;. (iii) use the SDK to create any software or service
containing any malicious or harmful code; (iv) use the SDK to damage, detrimentally interfere with,
surreptitiously intercept, or misappropriate any system or data; or (v) use the SDK in violation of
applicable law.
- Licensee may and hereby is permitted to create derivative works of the SDK provided that such
derivative works shall be subject to the Modified MIT (Open Source) License available here.
- Licensee acknowledges and agrees that the Company may change the form and nature of the SDK at any
time in the Company’s sole discretion without advance notice to Licensee, and that future versions of
the SDK may no longer be compatible with any given Property. Licensee acknowledges and agrees that
Company may stop (permanently or temporarily) providing the SDK (or any features within the SDK) to
Licensee at any time in the Company’s sole discretion without prior notice to Licensee.
- Nothing in this EULA permits Licensee to use any of the Company’s trade names, trademarks, service
marks, logos, domain names, or other distinctive brand features without the Company’s prior express
written consent.
- Term and Termination. This EULA shall commence as of the Effective Date
and shall remain in effect until terminated as provided herein. Either Party terminate this EULA for any
reason or for no reason at any time upon thirty (30) days’ prior written notice to the other Party.
Notwithstanding the foregoing, the Company may terminate this EULA immediately upon written notice to
Licensee in the event the Company believes Licensee has breached Section 2 or
4 herein. Upon termination of this EULA, the license granted to the SDK pursuant to
Section 1 shall immediately terminate and Licensee shall no longer have any rights to use
the SDK. Licensee understands, however, that the collection of data by the SDK through Properties on which
it is already integrated, and its use for purposes set forth herein, may continue until End Users have (a)
removed or disabled the SDK (or any application that integrates the SDK) from their respective devices, or
any application that integrates the SDK from your device, or (b) limited such data collection through
applicable device settings in a manner that is communicated to Company.
- Compliance with COPPA : Licensee shall not use the SDK in conjunction
with a Property that is directed to children under the age of 13. Licensee shall not use the SDK to
knowingly send to Company personal information (as defined under COPPA), including device identifiers or
precise location data, that has been received from children under the age of 13.
- Use and Ownership of SDK Data. Licensee acknowledges and agrees that the
SDK enables Licensee to collect certain information from end users (“End Users”) of the SDK’s functionality
(collectively, “SDK Information”), which generally helps provide developers with functionality to target and
personalize the notifications they send to end users. This data collected includes: End Users’ mobile
advertising identifiers, such as Apple IDFAs and Android Advertising identifiers; End Users’ email addresses
End Users’ IP address, device push token, precise location (e.g., GPS-level) data, network information,
language, time zone, product preferences, and privacy preferences. The Parties shall jointly own the SDK
Information, and each Party shall be entitled (without further compensation to the other) to use, share,
market, license, sell, store, and otherwise exploit the SDK Information to the maximum extent permitted by
law, which shall include using the SDK Information for cross-app, cross-device, and other interest-based
advertising, analytics and market research. Without limiting the foregoing, neither Party shall use SDK
Information for any of the following purposes: (a) employment eligibility, (b) credit eligibility, (c)
health card eligibility, or (d) insurance eligibility, underwriting, or pricing.
- Privacy Compliance. The Parties agree to comply with all applicable
privacy laws, and each respective party agrees to perform the following obligations:
- Licensee is responsible for obtaining all applicable consents required to enable OneSignal to collect
information from End User’s device or browser. Licensee shall publish privacy policies and disclosures
for the Properties that comply with applicable law and the terms of this EULA, including, but not
limited to, clearly disclosing that the SDK Information will be collected and how it may be used, as set
forth in Section 5 above.
- Each Party shall at all times comply with its respective published privacy policies and disclosures,
and each party shall at all times post a privacy policy on its website that describes how it collects,
uses and shares information, and that provides information about how an End User can opt out of
interest-based advertising (e.g., online behavioral or mobile cross-app advertising).
- Where Licensee provides data (such as IDFAs, Android Ad IDs, or location data) in a manner other than
through Company’s proprietary SDK, including without limitation through an API or an SDK proprietary to
the Licensee, Licensee shall be responsible for ensuring ensure that any collection and transfer of data
is done in compliance with user’s stated preferences, including without limitation devices settings to
“Limit Ad Tracking” and “Opt Out of interest-based ads.”
- Licensee shall notify Company in writing of any further data usage or governance requirements,
restrictions or limitations, to the extent they apply, in which case the Parties may execute a further,
paid subscription plan setting out such limitations and licensing payments to supplement the terms
herein.
- Confidentiality
- For purposes of this EULA, “Confidential Information” means and includes (a) the terms of this EULA,
including any schedule, exhibit, attachment, or amendment hereto; and (b) all proprietary information,
data, trade secrets, business information, and any other information disclosed, in writing, visually, or
orally by or on behalf of a Party (“Discloser”) to the other Party (“Recipient”) or to which Recipient
obtains access in connection with the negotiation or performance of this EULA that is marked as
“proprietary,” “confidential,” “trade secret,” or in some other manner to indicate that Discloser
considers it to be commercially sensitive, or which a reasonable person would understand to be
commercially sensitive. SDK Information shall not be Confidential Information, but rather shall be
subject to Section 2 hereof. Confidential Information shall not include information
that: (i) is already rightfully known to Recipient at the time it obtains Confidential Information from
Discloser; (ii) is or becomes generally available to the public other than as a result of disclosure in
breach of this EULA or any other confidentiality obligations; (iii) is lawfully received on a
nonconfidential basis from a third party authorized to disclose such information without restriction and
without breach of this EULA; (iv) is contained in, or is capable of being discovered through examination
of, publicly available records or materials; or (v) is developed by a Party without the use of any
Confidential Information provided by the other Party.
- Discloser’s Confidential Information shall remain the property of Discloser, and Recipient shall not
be deemed, by virtue of this EULA or any access to Discloser’s Confidential Information, to have
acquired any right, title, or interest in or to Discloser’s Confidential Information. Recipient agrees:
(a) to hold Discloser’s Confidential Information in strict confidence; (b) to limit disclosure of
Discloser’s Confidential Information to Recipient’s own employees and contractors who have a need to
know Discloser’s Confidential Information for the purposes of this EULA and who have been advised of,
and are bound to observe and comply with, Recipient’s obligations hereunder; (c) not to otherwise
disclose any of Discloser’s Confidential Information to any third party; (d) to use the Confidential
Information solely and exclusively in accordance with the terms of this EULA in order to carry out its
obligations and exercise its rights under this EULA; (e) to afford Discloser’s Confidential Information
at least the same level of protection against unauthorized disclosure or use as Recipient normally uses
to protect its own information of a similar character, but in no event, less than reasonable care; and
(f) to notify Discloser promptly of any unauthorized use or disclosure of Discloser’s Confidential
Information and to cooperate with and assist Discloser in every reasonable way to stop or minimize such
unauthorized use or disclosure.
- Notwithstanding anything to the contrary herein, in the event Recipient is required to disclose any of
Discloser’s Confidential Information under the terms of a valid and effective subpoena or order issued
by a court of competent jurisdiction or by a demand or information request from any regulatory
authority, Recipient shall, unless prohibited by the terms of a subpoena, order, or demand: (a) promptly
notify Discloser of the existence, terms, and circumstances surrounding such demand or request; (b)
consult with Discloser on the advisability of taking legally available steps to resist or narrow such
subpoena, order, or demand; and (c) if disclosure of such Confidential Information is required, exercise
its reasonable best efforts to narrow the scope of disclosure and obtain an order or other reliable
assurance that confidential treatment shall be accorded to such Confidential Information. To the extent
Recipient is prohibited from notifying Discloser of such a subpoena, order, or demand, by the terms of
same, Recipient shall exercise its reasonable efforts to narrow the scope of disclosure.
- Upon the termination of this EULA, Recipient shall promptly return (or destroy if directed by
Discloser) all of Discloser’s Confidential Information in its possession or in the possession of any
employee or contractor of Recipient.
- Intellectual Property Rights. Each Party acknowledges and agrees that no
intellectual property rights (including without limitation any rights based in trademark, copyright, patent
or trade secret law) are or are intended to be transferred from one party to the other through this EULA.
Neither Party shall receive, by virtue of this EULA or performance under it any ownership interest in the
other’s intellectual property. Without limitation of the above, Company may use the name and logo of
Licensee solely in order to designate Licensee as a licensee or client, for marketing purposes (e.g., on its
website or email marketing materials).
- Additional Representations and Warranties. Each Party represents that:
- to the extent it is a corporation, it is duly incorporated and in good standing under
the laws of the state of its incorporation;
- it has the right, power, and authority to enter into this EULA, grant the rights
granted by it herein, and perform its obligations without any additional consent or approval;
- it has not relied and shall not rely upon the other Party for legal advice regarding
its compliance with applicable law;
- the execution and performance of this EULA shall not violate or conflict with the
terms or conditions of any other agreement to which it is a party or by which it is bound; and
- it shall, and shall ensure that its employees and contractors, comply at its or their
own expense, with applicable law, including, without limitation, applicable law governing privacy and
data security.
- No Warranty THE SDK IS BEING PROVIDED TO LICENSEE ON AN “AS-IS” AND “AS
AVAILABLE” BASIS. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SDK OR THE RESULTS OBTAINED FROM ITS
USE SHALL MEET THE REQUIREMENTS OR BUSINESS NEEDS OF LICENSEE OR ITS CUSTOMERS OR THAT THE SDK’S OPERATION
SHALL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY MAKES NO REPRESENTATIONS AND WARRANTIES UNDER THIS EULA,
AND HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, RELATING TO THE
SDK, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE OR NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
- Limitations of Liability IN NO EVENT SHALL THE COMPANY, WHETHER IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE COMPANY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS EULA; OR (B) ANY DIRECT
DAMAGES ARISING FROM OR RELATING TO THIS EULA TO THE EXTENT THAT THE AGGREGATE AMOUNT OF SUCH DAMAGES
EXCEEDS THE GREATER OF (X) ALL AMOUNTS PAID BY ONE PARTY TO ANOTHER DURING THE SIX MONTHS PRECEDING THE DATE
OF THE EVENT THAT IS THE BASIS FOR THE CLAIM AND (Y) $1500.
- Force Majeure. Except for payment obligations, neither Party shall have
any liability for any failure or delay resulting from any condition beyond the reasonable control of such
Party, including governmental action or acts of terrorism, earthquake or other acts of God, labor
conditions, and power failures. Each Party shall promptly notify the other Party upon becoming aware that
any such event has occurred or is likely to occur and shall use its best efforts to minimize any resulting
delay in or interference with the performance of its obligations under this EULA.
- Indemnification
- Indemnification by the Company The Company agrees to indemnify, defend, and
hold Licensee and its affiliates and their respective directors, officers, employees, and agents
(collectively “Indemnified Licensee Persons”) harmless from and against any damages, awards, judgments,
settlement amounts, fines, penalties, losses, costs, and expenses (including reasonable legal fees and
expenses and costs of investigation) and other liabilities (collectively, “Losses”) arising out of any
lawsuit, action, claim, demand, administrative action, arbitration, or other legal proceeding brought or
asserted against any Indemnified Licensee Person as a result of or in connection with: (a) Company’s
breach of any covenant or representation herein, or (b) any allegation that the use of the SDK infringes
or misappropriates an effective U.S. patent a U.S. registered trademark, a U.S. copyright or a trade
secret; provided, however, that the Company shall have no obligation to any Indemnified Licensee Person
under this Section 13 to the extent such claim arises from: (i) use of the SDK in a
manner or for a purpose not specifically authorized under this EULA; (ii) any modification, change,
amendment, customization, or adaptation of the SDK not made wholly by the Company or any of its
designees; (iii) any modification, change, amendment, customization, or adaptation of the SDK made by
the Company at Licensee’s request; (iv) Licensee’s failure to implement any corrections, updates, or
changes to the SDK provided by the Company; or (v) Licensee’s breach or alleged breach of
Section 2 of this EULA. If Licensee’s use of the SDK becomes (or is likely to become)
the subject of a third-party infringement claim, the Company may, at its expense and option: (x) procure
for Licensee the right to continue to use the SDK; (y) replace or modify the SDK so that it becomes
non-infringing; or (z) immediately terminate this EULA.
- Indemnification by Licensee. Licensee agrees to indemnify, defend, and hold
the Company and its affiliates and their respective directors, officers, employees, and agents
(collectively “Indemnified Company Persons”) harmless from and against any Losses arising out of any
lawsuit, action, claim, demand, administrative action, arbitration, or other legal proceeding brought or
asserted against any Indemnified Company Person as a result of or in connection with: (a) Licensee’s
breach or alleged breach of any covenant or representation herein or of Licensee’s own posted privacy
policy (or similar posted privacy statement); or (b) any violation of applicable law by Licensee or any
other Indemnified Licensee Persons.
- Notice and Defense. For any claim under this Section 13,
(a) the indemnified party shall provide the indemnifying party with prompt written notice of such claim;
(b) the indemnifying party shall have the right and authority to control and direct the investigation,
defense, and settlement of the claim; (c) the indemnifying party shall have no liability for any
settlement or agreement entered into by the indemnified party without the indemnifying party’s prior
written consent; and (d) the indemnified party shall provide such cooperation and assistance as may be
reasonably requested by the indemnifying party in connection with the investigation, defense, or
settlement of the claim.
- Miscellaneous
- Notices. All notices, requests, and approvals required by a Party under this
EULA shall be in writing addressed/directed to the other Party at the address set forth below. All such
notices, requests, and approvals shall be deemed given upon the earlier of receipt of facsimile or email
transmission during the normal business day or actual receipt thereof. In the event of use of email
notice, the sender shall request a read receipt or also send a hard copy by regular mail to ensure
delivery. All such notices, requests, and approvals shall be addressed to the attention of the signatory
parties, or such other party that either party has designated in a separate writing as the appropriate
notice recipient:
- Governing Law. This EULA shall be governed by the laws of the State of
California without regard to choice of law principles.
- Arbitration. Any controversy or claim arising out of or in any way connected
with this EULA between the Parties shall be resolved by one arbitrator, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and shall be held in San Francisco
County, California. Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Costs of any arbitration shall be shared equally by the parties to the
arbitration.
- Assignment. Licensee may not assign or delegate any rights or obligations
under this EULA to any third party without the Company’s prior written consent. Notwithstanding the
foregoing, either Party may assign this EULA (along with all rights and obligations under it) to any of
its corporate affiliates, parents or subsidiaries, or in conjunction with the sale or transfer of all or
substantially all of its assets associated with performance under this EULA, provided that the assigning
party shall provide timely notice of such assignment.
- Amendment. No modification of this EULA or waiver of the terms and
conditions hereof shall be binding upon the Parties unless approved in writing by each of the Parties.
- Relationship of the Parties. The Parties agree they are independent
contractors to each other in performing their respective obligations hereunder. Nothing in this EULA or
in the working relationship being established and developed hereunder shall be deemed, nor shall it
cause, the Parties to be treated as partners, joint venturers, or otherwise as joint associates for
profit.
- No Waiver. Except as otherwise provided herein, the failure of either Party
to enforce at any time the provisions of this EULA shall not be constituted to be a present or future
waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every
such provision thereafter.
- Severability. If any provision of this EULA is held invalid or unenforceable
at law, such provision shall be deemed stricken from this EULA and the remainder of this EULA shall
continue in effect and be valid and enforceable to the fullest extent permitted by applicable law.
- Entire Agreement. This EULA is the entire agreement between the Parties and
supersede any and all prior understanding, agreements, or representations by or between the Parties,
written or oral, which may have related to the subject matter hereof. There are no third party
beneficiaries to this EULA.
- Survival. Sections 3, 5,
7-8, 10-11 and
13-14 shall survive termination of this EULA, to the extent
contemplated by their terms.