Thank you for your interest in using the Simile Inc dba Scatter ("Scatter") Software Development Kit (the “SDK”). In order to obtain and use the SDK, you must first agree to the terms of this License. THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE.  PLEASE READ THESE TERMS AND CONDITIONS (TOGETHER WITH THE ORDERING DOCUMENT, THE “AGREEMENT”) CAREFULLY. BY USING THIS SOFTWARE, OR BY OTHERWISE ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND CONSENT TO THESE TERMS HEREIN.  You understand (a) this is not a license to any third-party application and that you are solely responsible for ensuring that you have the necessary rights to use third party applications; and (b) the SDK may contain open source software, in which case it is your responsibility to review and comply with the notices and terms of use applicable to such open source software.

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TERMS AND CONDITIONS

1. License.
Subject to the terms and conditions of this Agreement, this license grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable, terminable license to use, install, run, perform and display the SDK (including without limitation, the, binary executables, packaged APIs and code samples, but otherwise not including source code), in the form and format provided by Scatter (the “SDK”) for the sole purpose of developing products, services and any other software or hardware applications that are interoperable with Scatter’s software and tools (“White Label Applications”). You will seek prior written consent from Scatter prior to any new or substantially different external or commercial use of the SDK.  The SDK will be accessible only by Licensee’s personnel and Licensee shall be liable for all such use. Any third party requiring access to the SDK in connection with the White Label Applications is required to obtain a direct license to the SDK from Scatter.

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2. License Restrictions.
Licensee will not, directly or indirectly, (a) resell, reverse engineer, disassemble, decompile or attempt to derive the source code of any part of the SDK, or any other software or firmware provided to you by Scatter in the binary form (except as any foregoing restriction is prohibited by applicable law); (b) use the SDK in a manner that would degrade or otherwise tarnish Scatter’s reputation; (c) copy, modify, transfer, or distribute any part of the SDK, or the SDK as a whole, except as may expressly be permitted under this Agreement;  (d) make any derivative works of the SDK without Scatter’s prior approval; (e) work around or defeat any technical limitations in the SDK; (f) alter or obscure any proprietary notices on or in the SDK; (g) export the SDK in violation of any regulation or law, including those of the U.S. Department of Commerce; (h) use the SDK, directly or indirectly, in relation to any third party products or services or for the development or promotion of technology competitive with the Scatter technology; (i) purport to subject the SDK, or any component thereof, to any license (e.g., certain open source licenses) that requires, as a condition of using the SDK subject to it, that the SDK be disclosed or distributed in source code form, without charge, or with rights for third parties to modify them; (j) use the SDK to compete with Scatter’s products and services; or (k)  share or distribute any SDK components separately or extractable from the SDK.

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3. Proprietary Rights and Confidentiality.
The SDK is licensed, not sold, and is protected by US and international intellectual property laws and Scatter owns all right, title and interest in and to the SDK and all intellectual property rights therein. Licensee may use the SDK only as expressly permitted in Sections 1 and 2 above. Except for White Label Applications utilizing the SDK as permitted hereunder, Licensee agrees that Scatter will own all modifications of, and derivative works based on the SDK, and Licensee hereby assigns all such modifications and derivative works to Scatter. All rights not expressly granted are reserved by Scatter. Without limiting the foregoing, nothing in this Agreement (other than the express licenses in Section 1, may be construed as a license to any Scatter intellectual property, expressly or by implication, estoppel, exhaustion, or otherwise). Licensee shall take all reasonable measures to maintain the confidentiality of the SDK and other Scatter technical information obtained by it (“Confidential Information”), and will not disclose the Confidential Information to any third party.  Licensee shall at all times, both during the term of this Agreement and thereafter until the Confidential Information falls into one of the exceptions below, keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Scatter under this Agreement, nor shall Licensee disclose any such Confidential Information to third parties without Scatter’s written consent. Licensee shall similarly bind its employees, consultants and independent contractors to the confidentiality obligations in this Agreement, and shall be responsible for any breaches thereof.  Licensee further agrees to return to Scatter all Confidential Information (including copies thereof) in Licensee’s possession, custody or control upon termination of this Agreement at any time and for any reason.  The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is in result of Licensee’s breach of this Agreement; (ii) prior to disclosure hereunder was already rightfully in Licensee’s possession; (iii) subsequent to disclosure hereunder is obtained by Licensee on a non-confidential basis from a third party who has the right to disclose such information to the Licensee; or (iv) is required to be disclosed pursuant to a court order, so long as Scatter is given adequate notice and the ability to challenge such required disclosure.

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4. No support.
Scatter is not obligated to provide support for or in relation to the SDK. If Scatter elects to provide any support, it may stop (or change how it is) doing so at any time, for any or no reason, without notice. Any support Scatter may provide is provided “as is,” “with all faults,” and without warranty

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5. Feedback.
If Licensee provides to Scatter suggestions, comments, input, ideas or know how in any form regarding the SDK (collectively, “Feedback”) to Scatter, Licensee hereby assigns and agrees to assign to Scatter all such Feedback.  Licensee shall execute any documentation reasonably required to vest ownership of such Feedback in Scatter.

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6. Term.
This Agreement is effective until terminated, and it will terminate (immediately, automatically, and without notice) if Licensee breaches any term herein or if Licensee’s access to software specified in an Ordering Document is terminated. Licensee may also terminate this Agreement at any time by providing notice to Scatter and destroying the SDK as provided below. When this Agreement terminates or expires, Licensee will promptly destroy the SDK (including all copies, modifications, and merged portions that Licensee has or is in Licensee’s control, in any form). Scatter may also terminate this Agreement at any time upon notice to Licensee, in which case Licensee must promptly destroy the SDK (including all copies, modifications, and merged portions that Licensee has or is in Licensee’s control, in any form). Sections 2, 3, 5-12 will survive any such termination or expiration.

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7. WARRANTY DISCLAIMER.
USE OF THE SDK IS AT LICENSEE’S SOLE RISK AND THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. USE OF THE SDK AND ANY MATERIAL OTHERWISE OBTAINED THROUGH OR DERIVED FROM THE USE OF THE SDK IS AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR OTHER DEVICES OR LOSS OF DATA THAT RESULTS FROM SUCH USE. SCATTER DOES NOT WARRANT THAT THE SDK WILL BE COMPATIBLE WITH ANY APPLICATIONS OR ENVIRONMENTS OR OTHERWISE MEET LICENSEE’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. SCATTER FURTHER EXPRESSLY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INTEGRATION, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.

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8. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT VOID UNDER APPLICABLE LAW, SCATTER SHALL NOT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) MATTER BEYOND ITS REASONABLE CONTROL; (II) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (III) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (IV) DAMAGES, IN THE AGGREGATE, IN EXCESS OF US $25.00, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

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9. Indemnification.
Licensee will defend, indemnify, and hold Scatter, its affiliates, and their respective successors, directors, officers, employees, and agents harmless from and against all claims, actions, demands, proceedings, damages, costs, and liabilities of any kind arising out of or related to (i) use of the SDK, (ii) any material developed using the SDK (including without limitation, any claim that any developed application infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy) and (iii) any non-compliance by Licensee or its users with this Agreement.

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10. Injunction.
The SDK includes valuable Scatter intellectual property, and breach of Sections 1, 2 or 3 will irreparably harm Scatter and give it the right (in addition to any other rights or remedies it may have at law or in equity) to seek injunctive relief, without the posting of any bond.

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11. No Publicity.
Except if otherwise stated in this Agreement, Licensee will not communicate with the press or public about this Agreement, or use Scatter’s name without Scatter’s express, prior, written consent.

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12. General.

(a) Licensee may not assign this Agreement, or any rights or duties under it, directly or indirectly (e.g., by merger, consolidation, reorganization, or transfer of control), by operation of contract, law, or otherwise, except with Scatter’s express written consent. Any attempted assignment by Licensee that violates this Section 12(a) is a material breach and is void. Scatter may freely assign this Agreement without consent. Subject to the rest of this Section 12(a), this Agreement will bind and benefit the parties’ respective permitted successors, assigns, receivers, and trustees.

(b) If  any term of this Agreement is found to be invalid, illegal or unenforceable, that term will be limited or eliminated to the minimum extent possible so that this Agreement otherwise remains in full force and effect and enforceable, and all other terms will continue in force. Captions are intended solely for the parties’ convenience and do not affect the meaning of any term.

(c) This Agreement shall be governed by the laws of the State of New York, without giving effect to choice of law principles. All disputes relating to this Agreement shall be resolved by binding non-appearance-based arbitration before a single arbitrator in New York County, New York. The arbitration shall be conducted in accordance with the rules and procedures of JAMS then in effect, and the judgment of the arbitrator shall be final and capable of entry in any court of competent jurisdiction. You and Scatter agree to submit to the personal jurisdiction of the courts located within New York County, New York in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration process or procedure or Scatter’s exercise of its equitable rights or remedies.

(d) No waiver of any breach of this Agreement will waive any other breach, and only written waivers are effective.

(e) This Agreement is the parties’ entire agreement regarding Licensee’s use of the SDK and merges all prior and contemporaneous communications, and supersedes all prior agreements between the parties regarding this subject. Scatter may make changes to this Agreement as it distributes new versions of the SDK. When these changes are made, Scatter will make a new version of the Agreement available.

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