SomosID for IoT Testing Terms and Conditions

By accessing the SomosID for IoT Testing Environment, you (also referred to herein as “Customer”) agree to the following terms (the “Agreement”): 

1. Definitions. In addition to capitalized terms expressly defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:

a.     “API Specification” means the specification for the SomosID for IoT API and other requirements for accessing the SomosID for IoT Testing Environment, as such specification and requirements may be amended from time to time by Somos in its discretion.

b.     “Beta” means any and all testing and access that takes place in a pre-release stage, including the MLP and the beta SomosID for IoT service.

c.     “Early Testing Period” has the meaning set forth in Section 2 of this Agreement.

d.     “SomosID for IoT” means the pre-release IoT device tracking system database.

e.     “SomosID for IoT API” means the application programming interface that is provided by Somos under the license terms set forth on Schedule A, which license terms are made a part of this Agreement, for the purpose of accessing the SomosID for IoT Testing Environment. 

f.      “SomosID for IoT Testing Environment” means the technical environment used to Beta test the pre-release versions of SomosID for IoT.

2.     Grant of access to the Somos for IoT Testing Environment.
You may access and use the SomosID for IoT Testing Environment for Beta testing prior to the full release of SomosID for IoT (or may Beta test any portion, feature, or functionality of the SomosID for IoT Testing Environment that are in Beta after release of SomosID for IoT more generally, such as improvements, enhancements, or modifications) during the term of this Agreement (the “Early Testing Period”) on a non-exclusive basis solely for the purpose of (i) testing and providing information to Somos as described in Section 3 and (ii) uploading data to be defined and identified by the Parties which Somos may incorporate into the Somos IoT Product for testing and development purposes. Your access to and use of the SomosID for IoT API is subject to the license terms on Schedule A attached hereto.

3.     Your Obligations.

a.     Reports. You agree to provide to Somos suggestions, ideas and other feedback for enhancements or improvements to SomosID for IoT and other information that comes to your attention during the Early Testing Period, as well as respond to requests for reports on the performance of SomosID for IoT, or other email inquiries, push notifications and communications from Somos from time to time (collectively, the “Reports”). 

b.     Error Notices. You agree to promptly notify Somos of any failure, error or other malfunction of any part of SomosID for IoT or the SomosID for IoT Testing Environment. 

c.     Modifications. You agree to implement promptly such modifications and changes as Somos may make to SomosID for IoT or the SomosID for IoT Testing Environment during the Early Testing Period. You understand that these modifications and changes may be incompatible with previous versions and could include substantial changes to the system and its operating procedures.

d.     Inclusion of Customer Data. You agree to upload data to be defined and identified by the Parties which Somos may incorporate into the SomosID for IoT product for testing and development purposes. Any such data that you upload will be provided “AS IS”, without any representations or warranties, and without any fees due.

e.     Customer will not decompile, disassemble, reverse engineer, disclose, distribute, modify, transfer or translate SomosID for IoT; or in any way derive from SomosID for IoT any source code or use any components of SomosID for IoT to prepare, directly or indirectly, any derivative works.

f.      Customer will participate, and encourage certain of your customers to participate, in testing of SomosID for IoT. Customer and Somos would first test SomosID for IoT internally with “dummy” data and, based upon such results, secondly, test with actual data from your customers who agree to participate during the Early Testing Period. Customer and Somos will review and discuss the results of both tests. 

g.     Customer will be liable for the actions and omissions of your officers, directors, employees, affiliates, agents and representatives for any breach of this Agreement or its obligations under this Agreement that are caused, directly or indirectly, by or on behalf of your officers, directors, employees, affiliates, agents and representatives.

4.     Obligations of Somos.

a.     Technical Assistance. During the Early Testing Period, Somos will provide to you such technical assistance as Somos may deem necessary to utilize SomosID for IoT or the SomosID for IoT Testing Environment properly.

b.     Modifications. During the Early Testing Period, Somos will consult with you regarding the performance of SomosID for IoT and will evaluate the test data and error reports provided by you. Somos will undertake to make such modifications and improvements to SomosID for IoT as deemed appropriate by Somos and provide the same to you at no cost; provided, however, Somos is not obligated to make any modifications or improvements. 

5.     Fee. There will be no fee charged for your use of SomosID for IoT or the SomosID for IoT Testing Environment during the Early Testing Period.  

6.     Confidentiality. 

a.     “Confidential Information” means information or data that is marked or otherwise identified as confidential and, if not, which, by the nature of its disclosure should reasonably be understood to be confidential or proprietary. Somos’ Confidential Information includes SomosID for IoT and the SomosID for IoT Testing Environment, specifications for SomosID for IoT, all non-public information regarding the operation of SomosID for IoT and Somos, any and all data that Customer or its customers include in the SomosID for IoT platform and all of Somos’ supporting software systems used in conjunction with SomosID for IoT. Your Confidential Information includes non-public financial and other information and data related to your business that has been identified as Confidential Information.

b.     Each Party agrees to hold the other Party’s Confidential Information in confidence and not to use it other than as necessary to perform the Party’s obligations under this Agreement. Each Party shall at all times maintain such Confidential Information in confidence in the same manner and to the same extent as such Party protects its own most confidential and proprietary information (which shall in no event be less than a reasonable degree of care).  Each Party agrees to return to the other all Confidential Information of the other Party in its possession, custody or control upon termination of this Agreement. 

c.     The obligations of confidentiality set forth in this Section 6 shall expire three (3) years following termination of this Agreement and shall not apply to information which (a) has entered the public domain except where such entry is the result of the receiving Party’s breach of this Agreement; (b) prior to disclosure hereunder was already in the receiving Party’s possession; or (c) subsequent to disclosure hereunder is obtained by the receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the receiving Party. 

d.     Without the prior written consent from Somos, Customer shall not: (a) disclose or otherwise make known to any third party that Customer is testing or has tested SomosID for IoT; or (b) disclose to any third party any information of any kind pertaining to this Agreement, the performance, function, use, or quality of the SomosID for IoT, or the existence of defects, bugs, or deficiencies of any kind in SomosID for IoT.

In the event Customer wants their data removed, Somos will do so within ten (10) business days noting that data removal shall not apply to data that: (a) has entered the public domain except where such entry is the result of the breach of this Agreement; (b) prior to disclosure hereunder was already in the Somos' possession; or (c) subsequent to disclosure hereunder is obtained by Somos on a non-confidential basis from a third party who has the right to disclose such information to the receiving Party.

7.     Ownership and Rights in Reports.

a.     Ownership of SomosID for IoT. Somos retains ownership of all right, title and interest in and to SomosID for IoT and the SomosID for IoT Testing Environment, including, without limitation, all patent rights, design rights, copyrights, sui generis database rights and trade secret rights (“Intellectual Property Rights”). You agree not to (i) disclose, distribute, copy, modify or reverse engineer any portion of SomosID for IoT, its software or design, or the SomosID for IoT Testing Environment, or (ii) sell, license, rent or transfer access to SomosID for IoT or the SomosID for IoT Testing Environment to any third party, or access thereto, in any product or service that you design, develop, market, license or sell; or in any way derive from SomosID for IoT and the SomosID for IoT Testing Environment any source code or use any components of SomosID for IoT and the SomosID for IoT Testing Environment to prepare derivative works or develop other software.

Somos will retain ownership of all right, title and interest in and to any data derivatives (if any) in SomosID for IoT and the SomosID for IoT Testing Environment, including without limitation reports, combinations by Somos of different data sources that created a new data product, etc.

b.     Rights in Reports. You hereby assign to Somos all Intellectual Property Rights in your Reports and in any modifications or improvements to SomosID for IoT that you propose. You agree that such Reports, even if designated as confidential by Customer, shall not create any confidentiality obligation hereunder for or upon Somos. You agree to take any action reasonably requested by Somos to evidence, perfect, obtain or maintain such rights. 

8.     WARRANTY DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT SOMOSID FOR IOT IS IN AN EARLY DEVELOPMENT STAGE, IS LIKELY TO CONTAIN ERRORS AND MALFUNCTIONS AND IS BEING PROVIDED TO CUSTOMER “AS-IS” FOR PURPOSES OF EVALUATION AND “BETA” TESTING. ACCORDINGLY, SOMOS DISCLAIMS ALL WARRANTIES RELATING TO SOMOSID FOR IOT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9.     LIMITATION OF LIABILITY. SOMOS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST OR LIABILITY INCURRED BY CUSTOMER IN CONNECTION WITH OR ARISING FROM CUSTOMER’S ACCESS TO OR USE OF SOMOSID FOR IOT UNDER ANY THEORY OF LIABILITY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL SOMOS BE LIABLE FOR LOSS OF DATA OR MALFUNCTION OF SOMOSID FOR IOT, THE SOMOSID FOR IOT TESTING ENVIRONMENT, ANY BUSINESS DISRUPTIONS AS A RESULT OF CUSTOMER’S USE OF SOMOSID FOR IOT, NOR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. 

IF THE FOREGOING DISCLAIMER AND WAIVER OF LIABILITY SHOULD BE HELD INVALID OR INEFFECTIVE BY A COURT OR OTHER ENTITY OF COMPETENT JURISDICTION, NEITHER SOMOS (INCLUDING ITS CURRENT AND FORMER DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS) NOR ANY SUPPLIER WILL BE LIABLE FOR ANY LOSSES, DAMAGES, CLAIMS, PENALTIES, COSTS, OR EXPENSES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, SOMOSID FOR IOT OR CUSTOMER’S USE OF OR INABILITY TO USE SOMOSID FOR IOT, IN ANY WAY, INCLUDING THEIR OWN NEGLIGENCE, BEYOND AN AGGREGATE AMOUNT EQUAL TO TEN DOLLARS ($10.00). 

10.  Indemnification. You agree to indemnify, to hold harmless and to defend at your sole cost and expense, Somos, its subsidiaries and their officers, directors, employees, contractors and representatives from any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs, relating to or arising out of third party claims based on your negligence or willful misconduct or your breach of this Agreement.  

11.  Term; Suspension; Termination. 

a.     Term. This Agreement shall begin when you accept these terms and conditions in the manner provided above and will continue until terminated as provided herein.

b.     Termination. This Agreement may be terminated by either Party for any reason or no reason upon thirty (30) days prior written notice to the other Party in accordance with the notice requirements contained herein.  

c.     Suspension. If Somos believes that you are in breach of your obligations under this Agreement, of the API Specification or the terms and conditions of the license for the API, Somos may upon notice to you and without liability to you of any kind suspend your access to SomosID for IoT and the SomosID for IoT Testing Environment. Such suspension shall last until Somos either determines, in its absolute discretion, that you have cured the breach or terminates this Agreement as provided in this Section 11.

d.     Expiration of Early Testing Period. Unless earlier terminated pursuant to this Agreement, the Early Testing Period shall expire on the date immediately prior to the date of GA Release, or some other time as determined by Somos. Somos will provide prior notice to Customer in advance of the GA Release date and/or the end of the Early Testing Period.  Customer’s access to SomosID for IoT and the SomosID for IoT Testing Environment pursuant to this Agreement shall terminate upon expiration of the Early Testing Period. In order to continue to have access and ability to use SomosID for IoT and the SomosID for IoT Testing Environment, Customer shall be required to re-apply for authorization to access SomosID for IoT and the SomosID for IoT Testing Environment as a precondition to resuming your access.  

e.     Obligations upon Termination. Upon expiration of the Early Testing Period, or termination of this Agreement, Customer shall immediately remove and destroy all data related to SomosID for IoT and the SomosID for IoT Testing Environment previously accessed by Customer. 

12.  General

a.     Entire Agreement. This Agreement, including Schedule A, constitutes the entire agreement between the Parties pertaining to the subject matter hereof. Any modifications of this Agreement must be in writing and signed by both Parties.

b.     Assignment. Somos may assign, delegate or subcontract this Agreement in whole or in part to one or more subsidiaries, successors, delegates or subcontractors. You may assign this Agreement only with the prior written consent of Somos, which consent may be withheld in Somos’ sole discretion. Any assignment in breach or violation of this Section will be void. All rights and obligations under this Agreement inure to the benefit of and are binding upon the heirs, successors, and permitted assigns of the Parties.

a.     Execution of Agreement; Controlling Law; Jurisdiction; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of laws provisions therein, and the Parties agree to be subject to the jurisdiction of the courts in Boston, Suffolk County in the Commonwealth of Massachusetts in the event a suit is commenced in connection with this Agreement.  In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

c.     Notice.  Somos may give notice to you by means of a general notice through electronic mail to your e-mail address on record with Somos, “push” notifications or other similar means, or by written communication sent by first class mail to your address on record in with Somos. You hereby consent to receive all such notifications. You may give notice to Somos and such notice shall be deemed given when received by Somos at any of the following: 

• Electronic mail to legal@somos.com; or
• Letter delivered by first class postage prepaid mail or courier to Somos at the following address
  Somos, Inc.
  Attn: Legal Department
  4 Lan Drive, 2nd Floor
  Westford, MA 01886
  U.S.A.

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SCHEDULE A

API LICENSE AGREEMENT

Thank you for your interest in the SomosID for IoT API for accessing and using the SomosID for IoT application. Because we are committed to protecting our users, we require you to abide by the terms of this API License Agreement (the “API License”). By accessing or using the API in any way you accept the terms of this API License. You represent and warrant that you are authorized to bind your employer to this API License and you agree that by accessing or using the API in any way you and your employer accept the terms of this API License. The terms “you” and “your” as used herein refer to you and your employer. The terms “we” or “us” as used herein refer to Somos, Inc.

1)          Definitions.

a)     “API” means the application programming interface that is provided by Somos under the license terms set forth herein, for the purpose of accessing the SomosID for IoT beta application.  

b)     “Application” means any service, software application, website, interface or other offering that you develop that will use, access or otherwise interact with SomosID for IoT API and/or incorporate any Developer Tools, in whole or in part.

c)     “Developer Tools” means the API and any and all related tools, documentation, sample code and information made available to you by Somos through the SomosID for IoT API or otherwise.

d)     “Somos” means Somos, Inc.

e)     “SomosID for IoT” means the pre-release IoT device tracking system database.

2)          License and Permitted Uses. Subject to your continued compliance with the terms and conditions of this API License, Somos grants to you a limited, revocable, non- exclusive, non-transferable, and non-sublicensable license to use the Developer Tools solely for the purpose of developing Applications that interact with the SomosID for IoT beta application and API. 

3)          Restrictions. You are granted no rights in addition to those granted in Section 2, and your access to and use of the Developer Tools is further conditioned on the following restrictions:

a)     You shall not (and shall not assist or encourage any third party to): (a) modify, alter or create derivative works of, except in accordance with Section 2, and (b) reverse engineer, disassemble or decompile or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of any software, including, without limitation, the Developer Tools, provided to you as part of this API License;

b)     You shall not access or use the Developer Tools or interact with the API except in accordance with Section 2;

c)     Your Applications shall not contain or introduce any computer code designed to disrupt, disable, harm, distort or otherwise impede in any manner the legitimate operation of any software, including, without limitation, the Developer Tools (including, without limitation, any viruses, worms, trojan horses, time bombs, and back doors);

d)     Your Applications shall not infringe any third party's intellectual property or other proprietary rights;

e)     You shall not use the Developer Tools in any manner that could damage, disable, overburden or impair any Somos offering, including, without limitation, the SomosID for IoT beta application, any Somos service or website; negatively affect or interfere with the use and enjoyment of any Somos offering by any third party; or disrupt the normal flow of traffic of any Somos offering;

f)      You shall comply with all applicable laws, regulations, contracts and policies, including, without limitation, current Somos policies, applicable to you concerning the use of the Developer Tools, including your Application’s use of, access to or otherwise interact with the SomosID for IoT beta application;

g)     You shall not remove any product identification, proprietary, copyright or other notice contained in any software, including, without limitation, the Developer Tools, provided to you as part of this API License;

h)     You shall not access or use the Developer Tools, or combine or use the Developer Tools with any other software, code, or other material, in any manner that may (a) require Somos to grant to you or any third party the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Somos offering, including, without limitation, the Developer Tools or (b) limit in any manner Somos’ ability to charge license fees or otherwise seek compensation in connection with marketing, licensing, or distribution of any Somos offering, including, without limitation, the Developer Tools; and

i)      You shall not sublicense, transfer, or assign any rights granted to you by Somos.

4)          Somos Rights. Somos may change, suspend, or discontinue any aspect of the Developer Tools, API, SomosID for IoT or other Somos service at any time and without any notice to you, including the availability of any API or any of the benefits or features provided in connection with your use of the API. Somos may also impose limits on certain features and Somos services or restrict your access to parts or all of the API without notice or liability. Somos may determine API call limits based on various factors, including, without limitation, the ways your Applications may be used or the anticipated volume of use associated with your Applications.

5)          Right to Monitor and Audit. You agree that Somos may monitor and audit your Applications or activities relating to your use of the Developer Tools. You will not seek to block or otherwise interfere with such monitoring or audit, and Somos may use technical means to overcome any methods you may use to block or interfere with such monitoring. Your failure to reasonably comply with Somos’ efforts to audit your compliance with this API License shall constitute a breach of this API License.

6)          Ownership. As between Somos and you: (i) Somos owns all right, title and interest in and to all intellectual property and other proprietary rights embodied in or associated with the Developer Tools, API, SomosID for IoT beta application, any Somos offering, and any modifications thereof or content created or derived therefrom; and (ii) you retain all right, title and interest in and to all intellectual property and other proprietary rights embodied in or associated with your Applications solely to the extent not owned by Somos.

7)          Trademarks. Each party’s trademarks, trade names, service marks and logos (“Trademarks”) are property of such party and any right to use any Trademarks will be provided only with prior written consent.

8)          Non-competition. You shall not use the Developer Tools to directly or indirectly compete with Somos. You shall not allow any direct or indirect competitor of Somos to derive any benefit from your access to and use of the Developer Tools. Nothing in this API License shall prevent Somos from developing, acquiring, licensing, marketing, promoting, offering, hosting, or distributing products, software or technologies that perform the same functions as or compete with your Applications.

9)          Indemnification. You will indemnify, defend, and hold Somos (including, without limitation, its affiliates, directors, employees and agents) harmless from and against any and all third party claims, liabilities, losses, damages and costs, including, without limitation, attorneys' fees arising from or in any way related to your acts and omissions in connection with this API License, any breach by you of this API License or your access to and use of the Developer Tools or interaction with the API.

10)     DISCLAIMER OF WARRANTIES. THE DEVELOPER TOOLS ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” WITH NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. SOMOS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, SECURITY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND IN SUCH JURISDICTIONS THE ABOVE EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT REQUIRED BY LAW. Without limiting the generality of the foregoing, Somos makes no representations or warranties regarding the availability or uptime of the API or any Developer Tools or that the API or Developer Tools will operate without interruption, be error-free, or free of harmful components. Somos may conduct maintenance on, temporarily suspend or altogether stop providing any of the Developer Tools at any time with or without notice to you.

11)     LIMITATION OF LIABILITY. SOMOS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, COVER, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES OR LIABILITIES IN CONNECTION WITH THIS API LICENSE WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND LIABILITIES. IN NO EVENT SHALL SOMOS’ TOTAL AND AGGREGATE LIABILITY UNDER THIS API LICENSE EXCEED TEN DOLLARS ($10). SOME JURISDICTIONS DO NOT ALLOW FOR CERTAIN LIMITATIONS OF LIABILITY AND IN SUCH JURISDICTIONS THE ABOVE LIMITATIONS WILL NOT APPLY SOLELY TO THE EXTENT REQUIRED BY LAW.

12)     Termination.

a)     Term. The term of this API License begins on the date you first access or use the API and continues until terminated in accordance with this API License.

b)     Termination. Somos may suspend or discontinue your access to the Developer Tools, revoke the license granted by this API License, or terminate this API License for any or no reason and at any time with or without notice to you and without liability to you.

c)     Effect of Termination. Upon the termination of this API License, access to the Developer Tools, API or other Somos service including any credentials thereto are revoked and all licenses and rights granted hereunder terminate. You must immediately cease all access to and use of the Developer Tools through any means. You must promptly destroy all materials in your possession pertaining to the Developer Tools and, upon Somos’ request, certify to Somos in writing that you have done so.

d)     Survival. The following Sections survive any termination of this API License: Definitions (1), Ownership (6), Non-competition (8), Indemnification (9), Disclaimer of Warranties (10), Limitation of Liability (11), Termination (12), Confidentiality (13), and General (14).

13)     Confidentiality. You shall not disclose to any third party any non-public information provided by Somos to you under this API License, including without limitation, information respecting the Developer Tools, the API, and any tokens or log-in credentials, non-public information regarding the operation of the SomosID for IoT beta application, and of Somos and all of Somos’ supporting software systems used in conjunction with the SomosID for IoT beta application (“Confidential Information”), shall only use the Confidential Information to exercise the rights granted to you in Section 2 and shall only disclose the Confidential Information to your employees, bound by written confidentiality obligations at least as protective as those contained herein, with a need to know the Confidential Information to exercise the rights granted to you in Section 2. You shall protect the Confidential Information at least as well as you protect other information of a similar nature or importance, but in any case, with at least reasonable care. You agree to return all Confidential Information in your possession, custody or control upon the termination of this API License. The obligations of confidentiality set forth in this Section 13 shall not apply to information which (a) has entered the public domain except where such entry is the result of your breach of this API License; (b) prior to disclosure hereunder was already in your possession; or (c) subsequent to disclosure hereunder is obtained by you on a non-confidential basis from a third party who has the right to disclose such information to you.

14)     General.

a.     This API License does not grant to you any exclusive right to the services or license provided hereunder, and Somos reserves the right to contract with other parties for the provision of these services or license. It is the intent and agreement of the parties hereto that this API License is between Somos and you only, and nothing herein contained shall confer upon any third party any rights against Somos, or Somos’ subsidiaries, whether under a third party beneficiary in theory or otherwise.

b.     Modifications. Somos may change the terms of this API License from time to time with or without notice to you and will post the amended terms on the Somos web site, or will otherwise notify you of the amended terms. Your continued use of the Developer Tools or API after the date on which amended terms are posted, or you are otherwise notified, constitutes your acceptance of such amended terms.

c.     Assignment. Somos may assign, delegate or subcontract this API License in whole or in part to one or more subsidiaries, successors, delegates or subcontractors. You may assign this API License only with the prior written consent of Somos, which consent may be withheld in Somos’ sole discretion. Any assignment in violation of this Section will be void. All rights and obligations under this API License inure to the benefit of and are binding upon the heirs, successors, and permitted assigns of the parties.

d.     Notice. Somos may give notice to you by means of a general notice through electronic mail to your e-mail address on record with Somos, “push” notifications or other similar means, or by written communication sent by first class mail to your address on record in with Somos. You hereby consent to receive all such notifications. You may give notice to Somos and such notice shall be deemed given when received by Somos at any of the following:

• Electronic mail to legal@somos.com.
• Letter delivered by first class postage prepaid mail or courier to Somos at the following address:
  Somos, Inc.
  Attn: Legal Dept.
  4 Lan Drive, 2nd Floor Westford, MA 01886
  U.S.A.

e.     Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for any violation of the provisions of this API License regarding Confidentiality, Somos’ Ownership rights and Trademarks, and that Somos may suffer irreparable damage through any such violation and that therefore, in addition to any other remedies it may have, Somos may seek and obtain injunctive relief against a breach or threatened breach of such obligations by you.

f.      Waiver. No course of dealing or failure of either party to enforce strictly any term, right or condition of this API License shall be construed as a waiver of such term, right or condition.

g.     This API License does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between you and Somos.

h.     Governing Law; Jurisdiction. This API License will be construed and enforced in accordance with the domestic laws of the State of Delaware, and you agree to be subject to the jurisdiction of the courts in the Commonwealth of Massachusetts in the event a suit is commenced in connection with this API License.