1.1 Viber Media S.a r.l. (“Viber”) provides a mobile first, platform that consists of a VoIP system, messaging service, groups and other means of interaction which can be installed on a mobile, tablet desktop and smart devices (the “Viber Platform”).
2. ACCEPTING THIS AGREEMENT
2.1 In order to develop Software, content and digital materials to operate on or in connection with the Viber Platform (“Products”), you must first agree to the Viber Developer Distribution Agreement (“Agreement”). You may not develop or create Products if you do not accept this Agreement.
3. YOUR USE OF THE VIBER PLATFORM
3.1 Except for the license rights granted by you in Section 4 below, Viber agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of Products, including any intellectual property rights which subsist in those Products.
3.2 You agree to use the Viber Platform only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
3.3 Prohibited Actions. You agree that you will not engage in any activity with the Viber Platform, including the development or distribution of Products, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party. You may not use customer information obtained from the Viber Platform to sell or distribute Products outside of the Viber Platform.
3.4 You agree that you are solely responsible for (and that Viber has no responsibility to you or to any third party for) any Products you incorporate into the Viber Platform including use of any Viber APIs and for the consequences of your actions (including any loss or damage which Viber may suffer as well as to end users) by doing so. These consequences include, but are not limited to, product liability, consumer protection, privacy matters and/or intellectual property claims relating to your products.
3.5 You agree that you are solely responsible for (and that Viber has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Viber or any third party may suffer) of any such breach.
3.6 Viber reserves the right to charge fees for future use of or access to the Viber Platform in Viber’s sole discretion. If Viber decides to charge for use of the Viber Platform, such charges will be disclosed to you prior to their effect. Viber also reserves the right to include advertising in or associated with any information provided to you through the Viber Platform. Viber may change, suspend, or discontinue providing the Viber Platform to you at any time, and may impose limits on certain features and materials offered including limitations on commercializing the Viber Platform or may restrict your access to parts or all of the Viber Platform without notice or liability.
4. COLLECTION OF DATA
4.1 If you collect content and information directly from the users by any means or through any third party, you will make it clear and understandable that you (and not Viber) are collecting it, and you will provide notice about and obtain Viber user’s consent prior to your collection and use of the content and information in accordance with all applicable privacy law, rules and regulations. Regardless of how you obtain content and information from the users, you are responsible for securing all necessary permissions to reuse their content and information and are solely responsible for any failure to do so.
4.2 You will not collect the users’ content or information, or otherwise access Viber, using automated means (such as harvesting bots, robots, spiders, or scrapers), without our permission or in any manner not permitted by the Viber Platform.
4.4 You must not use any data you may have received from Viber about the users or other persons or entities you reach using the Viber Platform.
4.5 Unless you obtain Viber’s prior written consent, you may not use or permit others to use the Viber Platform: (a) to share or ask the users to share or provide payment card details, financial account numbers or other payment and cardholder data; or (b) to include a link from the message to an external site where payment information may be collected.
5. LICENSE GRANTS
5.1 You grant to Viber a nonexclusive, worldwide, and royalty-free license to: (1) use, copy, distribute, transmit, make available, publicly display, publicly perform, reproduce, edit, adapt, modify, translate, reformat and create derivative works of the Products, for the purposes of distributing the Viber Platform that incorporates such Products, and (2) sublicense these rights, to the maximum extent permitted by applicable law.
5.2 You grant to Viber a limited, non-exclusive, royalty-free license during the term of this Agreement to display the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features owned (or licensed) by you, solely in connection with the distribution of the Viber Platform that incorporates the Products. Nothing in this Agreement grants you a right to use any of Viber’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
5.3 You represent and warrant that you have all intellectual property rights, including all necessary patent, trademark, trade secret, copyright or other proprietary rights, in and to the Product. If You use third-party materials, You represent and warrant that you have the right to distribute the third-party material in the Product. You agree that you will not submit material to Viber Platform that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit the material.
6. YOUR DEVELOPER CREDENTIALS
6.1 You agree that you are responsible for maintaining the confidentiality of any developer credentials that Viber may issue to you or which you may choose yourself and that you will be solely responsible for all Products that are developed under your developer credentials. Viber may limit the number of Developer Accounts issued to you or to the company or organization you work for.
7. PRIVACY AND INFORMATION
7.1 In order to continually innovate and improve the Viber Platform, Viber may collect certain usage statistics from the Viber Platform and any devices utilizing the Viber Platform (the “Devices”), including but not limited to, information on how the Viber Platform and Devices are being used.
8. TERMINATING THIS AGREEMENT
8.1 This Agreement will continue to apply until terminated by either you or Viber as set out below.
8.2 If you want to terminate this Agreement, you must provide Viber with thirty (30) days prior written notice (unless this Agreement terminates under Section 11.1) and cease your use of any relevant developer credentials.
8.3 Viber may at any time, terminate this Agreement with you if:
(A) you have breached any provision of this Agreement; or
(B) Viber is required to do so by law; or
(C) you cease being a developer authorized to develop Products for the Viber Platform; or
(D) Viber decides to no longer provide the Viber Platform or any part thereof which is relevant to your Product.
8.4 When the Agreement comes to an end, all of the legal rights, obligations and liabilities that you and Viber have benefited from, been subject to (or which have accrued over time whilst the Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 12.2 shall continue to apply to such rights, obligations and liabilities indefinitely.
9. DISCLAIMER OF WARRANTIES
9.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE VIBER PLATFORM IS AT YOUR SOLE RISK AND THAT THE STORE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND.
9.2 YOUR USE OF THE VIBER PLATFORM AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE VIBER PLATFORM IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
9.3 VIBER FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT WILL VIBER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE, USE, PROFITS, DATA OR GOODWILL, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THE LICENSE AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE VIBER PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT VIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL VIBER’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
11.1 You agree to defend, indemnify and hold harmless Viber, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) your use of the Viber Platform, (b) the Product or any part of the Product that 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 (c) any non-compliance by you with the Agreement.
12. CHANGES TO THE AGREEMENT
12.1 Viber may make changes to this Agreement at any time by sending you notice describing the modifications made. You should look at the Agreement, and check for notice of any changes, regularly. Changes will not be retroactive. If you do not agree with the modifications to the Agreement, you must terminate your use of the Viber Platform, which will be your sole and exclusive remedy. You agree that your continued use of the Viber Platform constitutes your agreement to the modified terms of this Agreement.
13. GENERAL LEGAL TERMS
13.1 The Agreement constitutes the whole legal agreement between you and Viber and governs your distribution of the Products for the Viber Platform (excluding any services which Viber may provide to you under a separate written agreement), and completely replaces any prior agreements between you and Viber in relation to the Products.
13.3 You may not assign or transfer the Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Viber. Any attempted assignment without such consent will be void. Subject to the foregoing, the Agreement will bind and benefit the parties and their respective successors and assigns.
13.4 To the extent permitted by law, the Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York, as they are applied to agreements entered into and to be performed entirely within New York.
13.5 Except as expressly set forth in the Agreement, the exercise by either party of any of its remedies under the Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under the Agreement or available at law or in equity or otherwise.
13.6 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
13.7 You agree that if Viber does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Viber has the benefit of under any applicable law), this will not be taken to be a formal waiver of Viber’s rights and that those rights or remedies will still be available to Viber.
13.8 You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Viber Platform nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.