This Software Development Kit License Agreement (the “Agreement”), effective as of the date of your signature below (the “Effective Date”), is by and between Simulation Theory, Inc., a Delaware corporation (“Licensor”) and you, the Licensee (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Licensor desires to license its proprietary SDK to Licensee for the Permitted Use; and
WHEREAS, Licensee desires to obtain a license to use the SDK for the Permitted Use, subject to the terms and conditions of this Agreement.
WHEREAS, Licensee understands and agrees that this Agreement provides the standard terms for licensure of the SDK and that Licensor may change these standard terms at any time within its sole discretion with thirty (30) days written notice to Licensee.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Acceptance Date” has the meaning set forth in Section 4.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Authorized Personnel” means each of the individual employees or contractors of Licensee authorized by both Parties to observe or participate in the integration of the SDK into Licensee’s Product pursuant to Section 4.
“Confidential Information” has the meaning set forth in 8.1.
“Compute Credits” are used to track how much the Licensee’s application utilizes the SDK. The SDK reports the hours of utilization per thread handled by the SDK back to the Licensee. The Licensee calculates the Compute Credits by dividing the number of hours by the number of threads.
“Designated Site” means Licensee’s facility at which Licensor will perform the integration of the SDK into Licensee’s Product.
“Disclosing Party” has the meaning set forth in 8.1.
“Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the SDK that Licensor provides or makes available to Licensee which describe the functionality, components, features, or requirements of the SDK, including any aspect of the installation, configuration, integration, operation, or use of the SDK.
“Effective Date” has the meaning set forth in the preamble.
“Force Majeure Event” has the meaning set forth in 15.11(a).
“Indemnitee” has the meaning set forth in 12.3.
“Indemnitor” has the meaning set forth in 12.3.
“Initial Term” has the meaning set forth in 14.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“License Fees” has the meaning set forth in Section 6.
“Licensee Indemnitee” has the meaning set forth in 12.1.
“Licensee’s Product” means Licensee’s proprietary software product into which the SDK will be integrated pursuant to this Agreement and any additional product into which the SDK will be integrated by any further agreement of the Parties.
“Licensor Indemnitee” has the meaning set forth in 12.2.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the SDK, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the SDK, but does not include any New Version.
“New Version” means any new version of the SDK that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor’s designation of a new version number), and which Licensor may make available to Licensee at an additional cost under a separate written agreement or amendment to this Agreement.
“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
“Open Source License” has the meaning set forth in 2.3.
“Permitted Use” means use of the SDK solely as integrated into Licensee’s Product for the purpose of commercializing the integrated version of Licensee’s Product.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Receiving Party” has the meaning set forth in 8.1.
“Renewal Term” has the meaning set forth in 14.1.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“SDK” means the version as of the Effective Date of Sim Theory’s Thunder SDK for Enterprise and Cloud Compute software development kit featuring libraries, executables, source code, data files, and example projects, and any Maintenance Releases provided to Licensee pursuant to this Agreement.
“Service Fees” has the meaning set forth in Section 6.
“SLA” has the meaning set for in Section 10.
“Support Credits” means the eight hours of engineering support services that Licensor will provide to Licensee in relation to the SDK and its integration or use by Licensee, as described in Exhibit B.
“Term” has the meaning set forth in 14.1.
“Territory” means worldwide, subject to Section 15.9, and excluding countries or regions subject to international trade embargoes, economic sanctions, or similar restrictive measures currently comprising: Cuba, Belarus, Iran, North Korea, Russia, Syria, and Russian occupied territories in the Ukraine.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
Subject to and conditioned on Licensee’s payment of License Fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable (except in compliance with Section 2.2), and non-transferable (except in compliance with 15.8) license to use the SDK and Documentation solely for the Permitted Use in the Territory during the Term and for the amount of Compute Credits stated in Exhibit A below. Additional Compute Credits can be obtained for the prices stated in Exhibit A below.
Licensee may sublicense the SDK to its customers or end users solely as integrated into and to the extent necessary to commercialize Licensee’s Product in accordance with the Permitted Use. Licensee shall require that any customers or end users sign a written end user license agreement prior to using or accessing Licensee’s Product with the SDK integrated therein binding such Persons to comply with the license restrictions set forth in Section 3 of this Agreement. Licensee shall be solely responsible for the acts and omissions of all customers or end users of Licensee’s Product.
The SDK includes Open Source Components licensed under MIT and BSD2 licenses referred to in Exhibit C (each, an “Open Source License”). Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open Source License(s).
The SDK may contain technological measures designed to prevent unauthorized or illegal use of the SDK. Licensee acknowledges and agrees that: (a) Licensor may use these and other lawful measures to verify Licensee’s compliance with the terms of this Agreement and enforce Licensor’s rights, including all Intellectual Property Rights, in and to the SDK; (b) Licensor may deny any individual access to and/or use of the SDK on written notice to Licensee if Licensor, in its sole discretion, believes that person’s use of the SDK would violate any provision of this Agreement, regardless of whether Licensee designated that person as an Authorized User; and (c) Licensor and its Representatives may collect, maintain, process, and use diagnostic, technical, usage, and related information, including information about Licensee’s computers, systems, and software, that Licensor may gather periodically to improve the performance of the SDK or develop Maintenance Releases.
Except as this Agreement expressly permits, and subject to 2.3 with respect to Open Source Components, Licensee shall not, and shall not permit any other Person to:
Within a reasonable time on dates to be agreed upon by the Parties in good faith, Licensor will provide Licensee with the necessary tools and instructions to initiate the integration of the SDK into Licensee’s Product. If necessary for Licensor and/or its Representative to perform the integration directly at the Designated Site, only Authorized Personnel may be present during the integration process and only Authorized Personnel will be permitted to observe or participate in the integration process solely in accordance with Licensor and/or its Representative’s approval and instructions. The SDK will be deemed accepted and the term for any warranty or support services will begin on the date Licensee provides the necessary integration tools and instructions or performs the integration, as applicable (the “Acceptance Date”).
Licensee shall pay Licensor the license fees set forth in Exhibit A in accordance with that exhibit and the terms of this Section 6 (the “License Fees”). If the Term is renewed for any Renewal Term(s) pursuant to Section 14.1, Licensee shall pay the then-current standard license fees that Licensee charges for the SDK during the applicable Renewal Term.
Licensee shall pay Licensor the service fees set forth in Exhibit B in accordance with that exhibit and the terms of this Section 6 (the “Service Fees”). If the Term is renewed for any Renewal Term(s) pursuant to 14.1, Licensee shall pay the then-current standard service fees that Licensee charges during the applicable Renewal Term.
All License Fees, Services Fees, and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
Licensor or its Representative may, in Licensor’s sole discretion, inspect and audit Licensee’s use of the SDK under this Agreement at any time during the Term and for one (1) year following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours at the Designated Site with the Authorized Personnel present or as otherwise agreed by the Parties and no more frequently than twice in any twelve (12) month period. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Licensor with respect to such audit. Licensor shall only examine information directly related to Licensee’s use of the SDK. If the audit determines that Licensee’s use of the SDK does not comply with the terms of this Agreement, then in addition to all other remedies available to Licensor, Licensee shall also pay to Licensor all costs incurred by Licensor in conducting the audit within ten (10) days of the date of written notification of the audit results.
In connection with this Agreement, each Party (the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (the “Receiving Party”). Subject to 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing, the SDK and Documentation, and the terms of this Agreement are the Confidential Information of Licensor.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose will use best efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Licensee shall take all reasonable measures to safeguard the SDK and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Upon request and at Licensor’s expense, Licensee shall take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability, and Licensor’s ownership of the Intellectual Property Rights in the SDK and Documentation. Licensee shall promptly notify Licensor in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Licensor’s Intellectual Property Rights in or relating to the SDK or Documentation; or (ii) any claim that the SDK or Documentation, including any production, use, marketing, sale, or other disposition of the SDK or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person. Upon Licensor’s request and at Licensor’s sole expense, Licensee shall fully cooperate with and assist Licensor in all reasonable ways in the conduct of any Action by Licensor to prevent or abate any actual or threatened infringement, misappropriation, or violation of Licensor’s rights in, and to attempt to resolve any Actions relating to, the SDK or Documentation, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens, and the like.
Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the SDK or Documentation.
Subject to the terms and conditions of this Agreement and conditioned on Licensee’s compliance therewith, Licensor will provide to Licensee the warranties and support services for the SDK at such levels as Licensee purchases in accordance with the service level agreement attached hereto as Exhibit B (the “SLA”).
Each Party represents, warrants, and covenants to the other Party that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
EXCEPT FOR THE LIMITED WARRANTIES PROVIDED OR PURCHASED IN THE SLA, THE SDK, DOCUMENTATION, AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SDK OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, INCLUDING WITHOUT LIMITATION LICENSEE’S PRODUCT, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
Licensor shall indemnify, defend, and hold harmless Licensee and Licensee’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Licensee Indemnitee”) from and against any and all Losses incurred by the Licensee Indemnitee resulting from any Action by a third party that the SDK or Documentation, or any use of the SDK or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights in the Territory. This Section 12.1 does not apply to the extent that the alleged infringement arises from: (i) Open Source Components or other Third-Party Materials; (ii) combination, operation, or use of the SDK in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Licensee’s use in the Documentation or as otherwise expressly permitted by Licensor in writing; (iii) modification of the SDK other than by Licensor in connection with this Agreement or with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and specifications; (iv) use of any version of the SDK other than the most current version or failure to timely arrange for any integration of any Maintenance Release, modification, update, or replacement of the SDK made available to Licensee by Licensor; (v) use of the SDK after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights; (vi) negligence, abuse, misapplication, or misuse of the SDK or Documentation by or on behalf of Licensee, Licensee’s Representatives, or a third party; (vii) use of the SDK or Documentation by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions; (viii) events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (ix) Losses for which Licensee is obligated to indemnify Licensor pursuant to 12.2.
Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, a “Licensor Indemnitee”) from and against any and all Losses incurred by the Licensor Indemnitee resulting from any Action by a third party: (i) that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any (x) use or combination of the SDK by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation or otherwise in writing; and (y) information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the SDK or Documentation, including without limitation Licensee’s Product; (ii) relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement or a violation of applicable Law; (iii) relating to negligence, abuse, misapplication, misuse, or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the SDK or Documentation or otherwise in connection with this Agreement; (iv) relating to use of the SDK or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope, or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor’s instructions; or (v) relating to any of Licensee’s products, services, or business activities.
Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to 12.1 or 12.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
If the SDK, or any part of the SDK, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the SDK is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense: (i) obtain the right for Licensee to continue to use the SDK materially as contemplated by this Agreement; (ii) modify or replace the SDK, in whole or in part, to seek to make the SDK non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute SDK under this Agreement; or (iii) if, after Licensor’s exercise of commercially reasonable efforts, none of the remedies set forth in subsections (i) or (ii) herein is reasonably available to Licensor, terminate this Agreement, in its entirety or with respect to the affected part or feature of the SDK, effective immediately on written notice to Licensee. Upon termination pursuant to subsection (iii) herein, Licensee shall cease all use of the SDK and Documentation immediately on receipt of Licensee’s notice and to the extent applicable and provided that Licensee fully complies with its post-termination obligations set forth in 14.3, Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any License Fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
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