License Agreement and Terms of Use

The following terms and conditions (these "Terms") govern your use of the products (as defined below) provided by Precipice Labs, Inc. (“Precipice”).

For the purpose of this Agreement, “Ostetso Product” shall include all aspects of the Ostetso code and service as provided by Precipice, including but not limited to the Ostetso SDK and any and all data, text, software, code libraries, application programming interfaces, software development kits, tools, documents, any online websites, applications or databases, any trial or test software, and any software or services related to the foregoing, as well as any Content (as defined below) and other materials associated with the Ostetso Product. The Ostetso Product is licensed by Precipice to you (“Partner”) and certain features and parameters of this license are described in the on-line form you completed on the Ostetso web site when you registered to access the Product, or in one or more completed order forms that may be agreed to from time to time by and between Precipice and Partner (in each case, referred to in these terms as a “Registration Form”). Collectively, these Terms and the terms and conditions set forth in a Registration Form, if any, will constitute a single agreement between Precipice and Partner (combined, this “Agreement”).

You may not use the Ostetso Product if you are a person barred from receiving the Ostetso Product under the laws of the United States or other countries, including the country in which you are resident or from which you use the Ostetso Product. You affirm that you are over the age of 13, as the Ostetso Product may not be used by children under 13. By agreeing to these Terms in the manner specified during the registration process, OR BY USING OR ACCESSING ANY PORTION OF THE PRODUCT, you unconditionally agree to be bound by these Terms, and are becoming a party to this Agreement. Your continued use of the Product shall also constitute assent to these Terms. If you do not unconditionally agree to all of these Terms, DO NOT USE OR ACCESS ANY PORTION OF THE PRODUCT. If the Terms set out herein are considered an offer, acceptance is expressly limited to these Terms. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE ANY OF THE PRODUCT, IN WHOLE OR IN PART.

1. Grant of License

Precipice hereby grants Partner a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the Ostetso SDK solely to embed a content-sharing network within Partner’s mobile application(s) specified in the Registration Form (the “Partner Applications”) and to access Content in connection with such Partner Applications. Partner may not install or use the Ostetso Product for any other purpose without Precipice’s prior written consent. Partner is solely responsible for the operation of the Partner Applications and for any terms and conditions applicable to use of and access to Partner Applications by its users (referred to as “End Users”). Partner will not make any representation or warranty on behalf of Precipice concerning the use, availability or features of the Ostetso Product or Content.

2. Restrictions

Except as expressly and unambiguously authorized under these Terms or in a Registration Form, Partner may not:

  • copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Ostetso Product without the prior written consent of Precipice;
  • otherwise use the Ostetso Product on behalf of any third party;
  • sell or otherwise receive compensation, without the prior written consent of Precipice, in connection with any product incorporating the Ostetso Product where such product contains no additional original, substantive functionality outside of the functionality of the Ostetso Product;
  • display or integrate any advertisements on the Ostetso Product or Content;
  • use or integrate the Ostetso Product with any application, web site or software other than the Partner Applications;
  • access (or attempt to access) the administrative interface of the Ostetso Product by any means other than through the interface that is provided by Precipice in connection with the Ostetso Product, unless you have been specifically allowed to do so in a separate agreement with Precipice, or engage in any activity that interferes with or disrupts the Ostetso Product (or the servers and networks which are connected to the Ostetso Product).
  • access the Ostetso Product for the purpose of bringing an intellectual property infringement claim against Precipice or for the purpose of creating a product or service competitive with the Ostetso Product.
  • enable, require or cause any user to purchase an item or service as a condition to continue use of the Ostetso Product; or
  • otherwise use the Ostetso Product in any manner that exceeds the scope of the licenses granted under this Agreement.

3. Acceptable Use Policy

Your use of the Ostetso Product is subject to this Acceptable Use Policy. Precipice reserves the right to terminate your account and cease all service if you are found to be in violation of this policy. We may change these policies at any time. It is your responsibility to keep up-to-date with and adhere to them.

Prohibited Content

The Content displayed and/or processed through your Application or other web site utilizing the Ostetso Product shall not contain or be used to promote any of the following types of content:

  • Content that infringes a third party's rights (e.g., copyright) according to applicable law;
  • Excessively profane content;
  • Hate-related or violent content;
  • Content advocating racial or ethnic intolerance;
  • Content intended to advocate or advance computer hacking or cracking;
  • Other illegal activity, including without limitation illegal export of controlled substances or illegal software;
  • libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content;
  • Drug paraphernalia;
  • Phishing;
  • Government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories.
  • Malicious content;
  • Other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights.

Prohibited Actions

Customer agrees not to, and not to allow third parties (including End Users) to use the Ostetso Product:

  • to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
  • to engage in, promote or encourage illegal activity
  • for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
  • to intentionally distribute viruses, worms, Trojan horses, corrupted files, spyware, hoaxes, malicious code or other items of a destructive or deceptive nature;
  • to interfere with the use of the Ostetso Products, or the equipment used to provide the Ostetso Product, by customers, authorized resellers, or other authorized users;
  • to disable, interfere with or circumvent any aspect of the Ostetso Product;
  • to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”)

4. Content on the Ostetso Product

You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Ostetso Product are the sole responsibility of the person from which such content originated. Any and all content existing within or transmitted through the Ostetso Product (Including content uploaded by your End Users) is referred to collectively throughout this document as the "Content." The term Content shall specifically exclude the application that you create using the Ostetso SDK and any source code written by you to be used with the Ostetso Product (collectively, "Applications"). Precipice reserves the right (but shall have no obligation) to remove any or all Content from the Ostetso Product. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Precipice. In the event that you elect not to comply with a request from Precipice to take down certain Content, Precipice reserves the right to directly take down such Content or to disable Applications.

In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. Precipice reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.

When Partner or Partner’s End Users post Content on the Ostetso Product, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Precipice a royalty-free, sublicensable, transferable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Content including your or any third-party name, voice, and/or likeness as contained in the Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Ostetso Product and Precipice’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Ostetso Product (and derivative works thereof) in any media formats and through any media channels.

Any End User of Partner’s app also hereby grants all other End Users of the Partner’s app a non-exclusive license to access their Content through the Ostetso Product, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Ostetso Product and under this agreement.

You agree that you are solely responsible for (and that Precipice has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Ostetso Product and for the consequences of your actions (including any loss or damage which Precipice may suffer) by doing so.

You agree that Precipice has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Ostetso Product. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.

5. Branding

Unless Partner has purchased the “White Label” premium add-on feature, Partner agrees to the following: (a) it will not remove, obscure and/or disrupt Precipice or Ostetso branding or credits without prior written permission by Precipice; (b) it may not otherwise use any Precipice logos (including the Ostetso logo) without prior written permission from Precipice; and (c) any use of Precipice logos in conjunction with the Partner Application shall be less prominent than the logo or mark that primarily describes the Partner Application, and Partner’s use of Precipice logos shall not imply any endorsement of the Partner Application or website by Precipice.

With respect to any Partner implementation that includes the “White-Label” premium add-on feature, as indicated in a Registration Form, Precipice and Partner agree that Partner may remove any Precipice branding, credit screens, logos, or any other references to the Ostetso Product or any other Precipice products in the Partner Application.

6. Data Usage and Privacy

Partner Data

Precipice collects information from individuals who visit the Company’s Web site and individuals who register to download and use the Ostetso Product. When expressing an interest in obtaining additional information about the Ostetso Product or registering to use it, you may provide Precipice with personal contact information, such as name, company name, address, phone number, and email address (“Required Contact Information”). When purchasing any additional-cost services that are part of the Ostetso Product, Precipice requires you to provide financial qualification and billing information, such as billing name and address and credit card number (“Billing Information”). Precipice may also ask you to provide additional information, such as company annual revenues, number of employees, or industry, or you may choose to provide information about the End Users of your application (“Optional Information”). Required Contact Information, Billing Information, and Optional Information, are referred to collectively as “Partner Data.”

Precipice uses Partner Data to perform and support the Ostetso Products. For example, if you fill out a “Contact Me” Web form, the Company will use the information provided to contact you about your interest in the Ostetso Products. Precipice may also use Partner Data for marketing purposes. For example, we may use information you provide to contact you to further discuss your interest in the Precipice and to send you information regarding things like promotions or events.

Precipice may share Partner Data with our service providers, vendors and other partners so that they can support the services you use, and from time to time we may partner with other companies to jointly offer products or services. If you purchase or specifically express interest in such a jointly-offered product or service, Precipice may share Partner Data collected in connection with your purchase or expression of interest with our joint promotion partner(s). If you do not wish for your information to be shared in this manner, you may opt not to purchase or specifically express interest in a jointly offered product or service.

Precipice uses a third-party service provider to manage credit card processing. This service provider is not permitted to store, retain, or use Billing Information except for the sole purpose of credit card processing on Precipice’s behalf.

End User Data

Precipice collects information from individuals who create an account on the Ostetso Product ( the End Users). When registering, these individuals will potentially provide us with user names, passwords, email addresses or other login information or personal information. In the course of using the Ostetso Product these individuals may also provide us with additional information about themselves such as uploaded profile photos, geographic locations, contact lists or address books and social network graphs. There may also be usage and behavior data collected about individual users. All of this information is referred to collectively as “User Data.”

It is the Partner’s responsibility to ensure that Partner maintains a privacy policy that allows Precipice to collect and use this User Data. You also agree that you will protect the privacy and legal rights of the End Users of your application.

You must obtain any consents required by applicable data protection laws and provide legally adequate privacy notice, access, and protection for End Users.

Partner’s privacy policy and all use of personally identifiable information will be consistent with Precipice’s Privacy Policy as described in this section of our License.

Precipice reserves the right to use or disclose information provided by Partners or End Users if required by law or if Precipice reasonably believes that use or disclosure is necessary to protect Precipice’s rights and/or to comply with a judicial proceeding, court order, or legal process.

Precipice uses appropriate administrative, technical, and physical security measures to protect Partner Data and End User Data.

7. Proprietary Rights

As between Precipice and Partner, the Ostetso Product and all intellectual property rights therein are and shall at all times remain the sole and exclusive property of Precipice and are protected by applicable intellectual property laws and treaties.

Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Precipice (and its licensors) shall retain all right, title and interest in and to the Ostetso Product, branding and logos. As between the parties, Partner owns and retains all rights to the Partner Applications and to the Partner Materials and all intellectual property rights therein. These Terms do not grant Precipice any ownership rights to Partner Applications or the Partner Materials.

Partner hereby grants Precipice a non-exclusive license to use, display, perform, modify, create derivative works of and otherwise fully exploit the Partner Apps solely for the purpose of promoting the Ostetso Product.

8. Confidentiality

Each party shall keep confidential and not disclose to any third party, or use for a purpose not contemplated by this Agreement, any non-public information (including without limitation the terms of this Agreement) obtained from the other party (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that the receiving party can document: (a) has been made publicly available by the disclosing party, (b) is or has been disclosed to such party without restriction by a third party who is not under an obligation of confidentiality with respect thereto, (c) is or has been independently developed by such party, without use of or reference to the other party’s confidential information, by persons without access to the same, or (d) must be disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. Precipice may disclose the terms and conditions of this Agreement to its financial and legal advisors, or in connection with a financing, or merger or acquisition of other strategic transaction entered into by Precipice or any Precipice affiliate.

9. Fees

Partner shall pay to Precipice any fees that are specified in each applicable Registration Form, for example fees for Premium or additional features, such as Private Networks or White Labeling (collectively “Fees”). You agree your payment of any fees related to the Ostetso Product are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Precipice or any of its affiliates regarding future functionality or features.

10. Trial Review Period

If a Registration Form indicates that Partner’s implementation includes a “Trial Review Period,” upon delivery of the Ostetso SDK listed in the Registration Form to Partner, Partner will have fifteen (15) days (the “Review Period”) to review and evaluate the Ostetso Product. If Partner elects not to accept the Ostetso Product, it must notify Precipice within the Review Period, in which case, Partner’s right to use the Ostetso Product will terminate and be of no further force or effect. If Partner fails to notify Precipice of its intention to terminate this Agreement within the Review Period, the Ostetso Product will be deemed accepted. Termination is Partner’s sole remedy and Precipice’s sole responsibility as a result of Partner’s decision not to implement the Ostetso Product for any reason.

11. Term and Termination

These Terms shall be effective from the date of the applicable Registration Form and continue until terminated as set forth below, unless an applicable Registration Form provides for a fixed contract term. Either party may terminate any Registration Form or this Agreement at its own convenience on written notice to the other party. If either party materially breaches these Terms or the terms of a Registration Form (including failure to make any payment hereunder), the other party may terminate this Agreement immediately upon written notice of such breach to the breaching party. Any such termination may be limited to one or more Registration Forms, in which case, the consequences of termination will be limited to the subject matter of that Registration Form.

12. Consequences of Termination

Upon termination or expiration of this Agreement or a Registration Form: (a) all Fees that are accrued as of the date of such termination shall become immediately due and payable; (b) Partner shall immediately return to Precipice, remove from the Partner Application or any website or web pages in which code from the Ostetso Product that has been embedded, and cease all further use of, the Ostetso Product and all copies of any documents, software, drawings, flow charts, structure charts, recording media and any other materials furnished to Partner or used by Precipice in connection with such Registration Form; and (c) any licenses granted to Partner under this Agreement shall immediately terminate. In addition, upon termination or expiration of this Agreement, each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party. Sections 7, 8, 12, 14, 15, 16, 19 and 20 shall survive any termination or expiration of this Agreement.

13. Versions and Support Responsibilities

Precipice will provide access to the then most-current version of the Ostetso Product as of the effective date of each applicable Registration Form. Precipice provides no other technical support for Partner’s use or implementation of the Ostetso Product unless specifically agreed to in writing by Precipice. Partner will be solely responsible for providing technical support to Partner’s End Users or other customers. Except as set forth in a Registration Form, these Terms do not entitle Partner to any Precipice Product upgrades, unless Partner makes separate arrangements with Precipice.

14. Warranty Disclaimer

THE OSTETSO PRODUCT AND CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, PRECIPICE AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE OSTETSO PRODUCT AND CONTENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, PRECIPICE DISCLAIMS ANY WARRANTY THAT PARTNER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.

15. Indemnity

Partner agrees to defend (or settle), indemnify and hold harmless Precipice, its respective directors, officers, employees, agents, successors and assigns from and against any and all damages, liabilities, costs and expenses (including reasonable legal fees) payable to a third-party (collectively “Losses”) incurred as a result of a third-party claim, cause of action, judgment or proceeding relating to or arising out of the Partner Application or Partner Materials or any use of the Ostetso Product in conjunction with the Partner Application or the Partner Materials. The foregoing indemnity obligations are conditioned upon Precipice providing Partner prompt written notice of any such claim, reasonable cooperation and sole control over defense and settlement thereof.

16. Liability Limitation

NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR ANY LIABILITY OR DAMAGES ARISING OUT OF SECTION 8 (CONFIDENTIALITY) OR SECTION 15 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES. IN NO EVENT SHALL PRECIPICE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT PAID (OR, IN THE CASE OF PARTNER, PAYABLE) TO PRECIPICE BY PARTNER HEREUNDER; AND (B) FIVE THOUSAND DOLLARS ($5,000).

17. Government Use

If Partner is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Ostetso Product are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. All Ostetso Product are "commercial items," "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3. In accordance with such provisions, any use of the Ostetso Product by the Government shall be governed solely by these Terms.

18. Laws and Export Controls

Partner shall comply with all applicable export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Partner shall not export, or allow the export or re-export of the Ostetso Product in violation of any such restrictions, laws or regulations. By downloading or using the Ostetso Product, Partner agrees to the foregoing and represents and warrants that Partner is not located in, under the control of, or a national or resident of any restricted country.

19. Notices

Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address set forth in a Registration Form or such other address as may be properly specified by written notice hereunder. Notices will be deemed effective upon receipt.

20. Miscellaneous

These Terms and the terms contained in any Registration Forms constitute the entire agreement between Partner and Precipice pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. The prevailing party in any action arising out of these this Agreement shall be entitled to an award of its costs and attorneys' fees. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by Partner or others does not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement may not be assigned or transferred for any reason whatsoever by Partner without Precipice's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect.

Notwithstanding the foregoing sentence, Partner may assign this Agreement to an entity that acquires all or substantially all of its assets by merger, acquisition or otherwise and Precipice expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder, provided Precipice will at all times remain liable for any such assignee or delegate.

21. Trademarks

Apple, the Apple logo, iPad, and iPhone are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc.