Median Online Terms
and Conditions

These Online Terms were last updated on August 7, 2023

The following Median Online Terms and Conditions (the “Online Terms”) set forth the terms and conditions under which GoNative.io LLC (“GoNative”) may make available its Offerings (as defined below), including its websites and online services provided through such websites, including: (a) the Median website located at: https://median.co and related website software (collectively, the “Median Platform”); (b) any mobile application developed through your use of the Median Platform, or through GoNative’s use of the Median Platform on your behalf (each such application, a “Median Application”); (c) related iOS and Android mobile application source code made available through: (i) the Median Platform; (ii) online source code repositories; or (iii) any other permitted means of distribution and receipt; and (d) any modifications thereto (all such source code, “Median Source Code” and collectively with the Median Applications and Median Platform, the “Median Solution”). For greater certainty, any reference to the Median Solution in these Online Terms means the Median Solution in whole or in part.

These Online Terms form an agreement between GoNative and the person visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Median Solution (such person, “you” or “App Manager”) and are entered into the earlier of: (1) the date you first use any part of the Median Solution; and (2) the date the you agree to be bound by these Online Terms (the “Effective Date”). You acknowledge and agree that your use of the Offerings may be subject to other agreements that GoNative has with you or your organization, as described herein, and that these Online Terms may not apply.

BY USING THE MEDIAN SOLUTION, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE ONLINE TERMS, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 3 (CHANGES). IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE ONLINE TERMS, YOU WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE MEDIAN SOLUTION. YOU REPRESENT AND WARRANT TO GONATIVE THAT: (A) YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT; AND (B) ALL INFORMATION YOU SUPPLY TO GONATIVE IN CONNECTION WITH THESE ONLINE TERMS IS TRUE, ACCURATE, CURRENT AND COMPLETE.

IF YOU ARE USING THE MEDIAN SOLUTION ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE ONLINE TERMS, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 3 (CHANGES).

1.  Offerings.

1.1  Offerings. Any products or services made available by GoNative under these Online Terms, including, but not limited to, the Median Solution, any configuration or app store publishing services, and any support and maintenance services are, collectively, the “Offerings”. For greater clarity, the Offerings made available under these Online Terms will be made available to App Manager only. No access or use of the Offerings by affiliates of App Manager will be permitted unless covered by a separate agreement entered into between GoNative and the applicable App Manager affiliate.

1.2  Out-of-Scope Services. Any services, features or functionalities not described in these Online Terms are out-of-scope. App Manager and GoNative may agree to enter into an agreement that covers a broader range of services (an “Enterprise Agreement”), which may include other support and maintenance offerings, advisory services, custom development services, other additional services, or additional licenses, features or functionalities for applications identified in such agreement. For clarity, any such Enterprise Agreement will govern your development and use of any Median Applications identified therein (“Enterprise Applications”) and your use of the Median Platform, and any other products or services provided by GoNative pursuant to such Enterprise Agreement, in connection with the development and use of such Enterprise Applications. All other use of the Offerings, including any Median Applications that are not Enterprise Applications and use of the Median Platform to create such Median Applications, will be governed by these Online Terms.

1.3  Proprietary Rights. The Offerings contain proprietary and trade secret information of GoNative. Except for the limited rights or licenses that GoNative grants to you under these Online Terms, GoNative retains all right, title and interest, including intellectual property rights, in and to the Offerings. Except as expressly permitted herein, you may not disclose any Median Source Code to the public or to any third party, including to your third party end users.

2.  The Median Solution.

2.1  Access to the Median Platform. Subject to the terms and conditions of these Online Terms, for each Median Application, or version thereof, created under these Online Terms, GoNative will make a private management link available to you through which you and your Permitted Users (as defined below) may access the Median Platform to: (a) configure and build the applicable Median Application; and (b) download the Median Source Code and iOS and Android app binary files, such as .IPA or .APK packages that do not contain Median Source Code, (“App Binary Files”) for such Median Application. You are solely responsible for controlling access to the Median Application under the terms and conditions of these Online Terms.

2.2  Free License Grant. For each Median Application, GoNative hereby grants you a worldwide, revocable, non-assignable, non-transferable, non-exclusive right and license (each, a “Free License”) to:

(a)  access and publish (to the Apple App Store and Google Play Store) the Median Source Code and App Binary Files for such Median Application in accordance with these Online Terms;

(b)  sublicense the access and use rights set out in subsection 2.2(a) to Permitted Users (as defined below); and

(c)  access, modify and use the Median Source Code and Median Applications for internal evaluation and testing purposes.

2.3  Permitted Users. App Manager may permit certain individuals (“Permitted Users”) to access and use: (a) the Median Platform during the Term via the private management link referenced in Section 2.1 (Access to the Median Platform); and (b) the Median Source Code in accordance with Section 2.2 (Median Free License Grant). App Manager will be responsible for all such access and use by Permitted Users and will ensure that all Permitted Users comply with App Manager’s obligations set forth in these Online Terms, including App Manager’s obligations of confidentiality set out in Section 8 (Confidentiality) and the use restrictions set out in Section 2.6 (Prohibited Uses).

2.4  Professional Licenses.

(a)  In the event that you elect to purchase a license from GoNative for a Median Application granting you the right to access, modify, publish and use the Median Source Code and App Binary Files for such Median Application (a “Professional License”), GoNative will issue a copy of the Professional License substantially in the form set out at: https://median.co/license for the applicable Median Application, or version thereof, to you for your records. Each Professional License: (i) when issued, forms part of and is incorporated by reference into these Online Terms; and (ii) is issued for a single Median Application, or version thereof, published as iOS or Android mobile applications.

(b)  In the event that you elect to add certain basic features, functionalities or services to a Median Application, or version thereof, for which you are purchasing or have purchased a Professional License (a “Licensed Application”) without entering into an Enterprise Agreement, the copy of the applicable Professional License issued to you may list the capabilities, functionalities, services or other add-ons purchased for such Licensed Application, which may include push notification providers and native plugin modules, that are included in or permitted to be used with the Licensed Application.

2.5  License Conditions. The licenses granted to you in these Online Terms, including each Free License and any Professional Licenses, are subject to the terms and conditions of these Online Terms and your compliance therewith, including compliance with any payment obligations for such license and the following conditions: (a) GoNative retains all rights to, ownership of and interest in the Median Solution, including the Median Source Code; (b) except as set out in 2.2(b), you may not disclose or sublicense the right to access or use Median Source Code to any third party; (c) except as expressly permitted in these Online Terms you may not modify Median Source Code or App Binary Files; and (d) where GoNative has the right to revoke a license under these Online Terms, GoNative may exercise such right with respect to a single license (e.g., a single Professional License) or with respect to all licenses granted to you under these Online Terms, at its sole discretion.

2.6  Prohibited Uses.

(a)  You will not, and you will not permit any Permitted User to, use the Median Solution for any purpose beyond the scope expressly set out in these Online Terms.

(b)  Except as expressly permitted in these Online Terms, including in this Section 2 (The Median Solution) and any Professional License, you will have no right and will not: (i) copy the Median Solution (other than as necessary to access and use the Median Solution in accordance with these Online Terms); (ii) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Median Solution or otherwise discern the source code of the Median Solution; (iii) bypass or alter in any way GoNative’s license compliance mechanisms; (iv) adapt, modify, translate, or create derivative works of the Median Solution; (v) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Median Solution; (vi) use the Median Solution to create, collect, transmit, store, use, or process any data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (vii) authorize or assist any third party to do any of the foregoing.

(c)  Any capabilities, functionalities, features, support, updates, services or other add-ons purchased for a Licensed Application may only be enabled in or used in connection with such Licensed Application, and may not be enabled or used in any other Median Application for which you have not purchased such capabilities, functionalities, features, support, updates, services or other add-ons.

2.7  Configuration or Customization of Licensed Applications by GoNative. In the event that you elect to purchase full-service app configuration services, custom development services, or other configuration or customization services for a Licensed Application then, subject to your compliance with these Online Terms, GoNative will use the existing features and functionality of, or extend the features and functionality of, the Median Solution to provide a Licensed Application that meets your requirements. You are solely responsible for ensuring that GoNative is provided all such requirements that must be met by the Licensed Application. If, after GoNative's commencement of services, your requirements change any proposed new requirements must be provided to GoNative in writing. GoNative, it its sole discretion, may elect to either: (a) deliver the services in accordance with the original requirements; or (b) deliver the services in accordance with the new requirements. Once the Licensed Application has been delivered, you: (a) are solely responsible for ensuring that all content and functionality of the applicable Licensed Application is satisfactory; and (b) must provide confirmation of such satisfactory content and functionality to GoNative in response to any request for such confirmation or final approval from GoNative (which confirmation may be made via email).

2.8  Publishing of Licensed Applications by GoNative. In the event that you elect to purchase publishing services for a Licensed Application, then, subject to your compliance with these Online Terms, GoNative will publish a Licensed Application in the Apple App Store or the Google Play Store. In order to have a Licensed Application published, you will: (a) open and maintain Apple developer and Google Play developer accounts, as applicable; and (b) provide GoNative with developer account access to enable GoNative to complete any required publishing tasks, as may be determined by either party, acting reasonably. If the Licensed Application to be published includes any ability for users to login, you will create and provide a sample username and password for GoNative and app store reviewers to utilize for review. You are solely responsible for: (i) ensuring that all content and functionality of the Licensed Application is satisfactory; and (ii) providing confirmation of such satisfactory content and functionality to GoNative in response to any request for such confirmation or final approval from GoNative (which confirmation may be made via email), in each case prior to GoNative submitting the iOS and Android mobile applications to the Apple App Store and Google Play Store for publishing approval.

2.9  Support and Maintenance.

(a)  In the event that you elect to add a plan for support and maintenance services to a Licensed Application (each, a “Support and Maintenance Plan”) without entering into an Enterprise Agreement that covers such support and maintenance services, such Support and Maintenance Plan will be subject to the support and maintenance terms set out at: https://median.co/terms-support (the “Support and Maintenance Terms”). The Support and Maintenance Terms form part of and are incorporated by reference into these Online Terms.

(b)  If you do purchase support for a Licensed Application, then, subject to your compliance with these Online Terms, GoNative may, at its discretion, make available updates, upgrades and bug-fixes (“Updates”) for the Licensed Application that may (i) provide improved or new functionality; (ii) improve compatibility and performance of the Licenced Application on iOS and Android devices; or (iii) incorporate new software provided by a third party vendor. Your rights to access and use any Updates commence upon adding a Support and Maintenance Plan and cease upon cancellation of the Support and Maintenance Plan .

2.10  App Manager Data License Grant. You hereby grant to GoNative a perpetual, worldwide, non-exclusive, royalty-free, fully-paid up right and license to copy, access, store and use data, information, pictures, videos, audio or other materials or content provided or made available by you to GoNative in connection with the Offerings or these Online Terms, including but not limited to any app configuration data, branding assets, app demo content or application binary files related to a Median Application and any account, billing or payment data related to your subscriptions, license purchases or other Offering purchases (collectively, “App Manager Data”) in order to: (a) provide and improve the Offerings, including, without limitation, the configuration assistance described in Section 2.7 (Configuration of Median Applications by GoNative), the publishing assistance described in Section 2.8 (Publishing of Median Applications by GoNative) and any support and maintenance services provided in accordance with the Support and Maintenance Terms; and (b) to validate and enforce your compliance with any applicable licenses under these Online Terms. You acknowledge and agree that GoNative may receive, access and use certain information about use of the Median Applications (such as IP addresses of Median Application users) for the purpose of validating and enforcing licenses related to such Median Applications.

2.11  Personal Information. You agree (on your behalf and on behalf of each Permitted User) to GoNative’s access, use, collection, and storage of App Manager Data that contains information about identifiable individuals, including any Permitted User, for the purposes authorized under these Online Terms, including the purposes described in Section 2.9 (App Manager Data License Grant). You acknowledge and agree that such information will be treated in accordance with GoNative’s privacy policy located at https://median.co/privacy (the “Privacy Policy”). In the event of any conflict between the terms of these Online Terms and the Privacy Policy, the terms of these Online Terms will control, provided, however, that the terms and conditions of the Privacy Policy will prevail over these Online Terms to the extent that the Privacy Policy expressly refers to the provisions of these Online Terms over which it prevails.

2.12  Third Party Products and Services. You acknowledge and agree that certain aspects of the Median Solution may integrate or interoperate with third party products or services, and that GoNative’s ability to continue offering those aspects of the Median Solution is dependent upon the continuing availability of such products and services and any intellectual property related thereto. If a third party ceases to make available any such products, services or intellectual property rights on which any aspect of the Median Solution depends, then GoNative may alter, substitute or cease providing such features or functionality without prior notice to you.

2.13  Communications Not Confidential. GoNative cannot guarantee confidentiality of any communications made through the Median Solution or the security of information communicated over the internet, public networks or otherwise transmitted to the Median Solution. GoNative is not responsible for circumvention of any privacy settings or security measures contained in the Median Solution.

3.  Changes.

3.1  Changes to These Online Terms. GoNative reserves the right, in its sole discretion, to change these Online Terms, other than the terms of any Professional License, at any time by posting a new version to the Median Platform. Any and all such modifications are effective immediately upon posting and apply to all access to and continued use of the Median Solution. It is your obligation to monitor the Median Platform for any such changes. Your continued access to or use of the Median Solution after any changes to these Online Terms indicates your acceptance of such changes. It is your responsibility to review these Online Terms regularly in order to be aware of any such modifications.

3.2  Changes to the Median Solution. GoNative reserves the right to change, withdraw or terminate the Median Solution at any time, without notice. GoNative will not be liable if, for any reason, the Median Solution is unavailable at any time or for any period.

4.  Payment.

4.1  Fees. You agree that the rights granted under these Online Terms, including use of the Median Applications and access to the Offerings, are conditional on your payment of all required fees: (a) as specified on the Median Platform, including all applicable license prices, services prices, and support and maintenance subscription rates set out in GoNative’s price listing made available at: https://median.co/pricing as updated from time to time; or (b) as mutually agreed between you and GoNative in writing, as applicable (the “Fees”). In consideration for the rights granted to you and the performance of GoNative’s obligations under these Online Terms, you will pay GoNative the Fees in accordance with the payment terms set out herein.

4.2  Payment. Unless otherwise expressly stipulated on an invoice or the Support and Maintenance Terms, all Fees are due prior to issuance of a license or commencement of a service by GoNative. Your payment is not subject to any setoff claims or rights of offset of any kind.

4.3  Taxes. Unless specified otherwise in the applicable invoice, the Fees set out in these Online Terms do not include applicable federal, state, provincial, territorial, county, municipal, local or foreign taxes, charges, levies, imposts and other assessments, including all income, sales, use, GST/HST, QST, services, value added, capital, capital gains, alternative, net worth, transfer, profits, withholding, payroll, employer health, excise, franchise, real property and personal property taxes or any other taxes, customs duties, fees, assessments, royalties, duties, deductions, compulsory loans or similar charges in the nature of a tax (collectively “Taxes”). You will be responsible for and pay all applicable Taxes. Notwithstanding anything to the contrary in these Online Terms, if any amounts (including any Taxes) are required to be withheld by you from any amount otherwise payable by you to or for the benefit of GoNative under these Online Terms, you will:

(a)  pay an additional amount such that the net amount actually received by GoNative will, after all such withholdings (including any withholdings to be made in respect of any additional amount payable pursuant to this sentence), equal the full amount of the payment then due;

(b)  pay, or cause to be paid, to the relevant taxation authority the full amount of such withholdings (including the full amount of any withholdings in respect of any additional payment required to be paid pursuant to this sentence) in accordance with applicable law; and

(c)  furnish GoNative as soon as practicable (and, in any event, within thirty (30) days) with an official receipt (or a certified copy thereof) or such other documentation as is reasonably acceptable to GoNative evidencing payment of such withholdings to the relevant taxation authority.

If App Manager is a tax-exempt entity or claims exemption from any Taxes hereunder, App Manager may provide a certificate of exemption upon agreement to these Online Terms and, after receipt of valid evidence of exemption, GoNative will not charge App Manager any Taxes from which App Manager is exempt.

5.  Warranties; Disclaimer; Indemnity.

5.1  Mutual Representations and Warranties. Each party represents, warrants, and covenants that: (a) it has full power and all necessary rights to enter into these Online Terms; and (b) it will carry out its obligations under these Online Terms in compliance with applicable laws.

5.2  GoNative Representation and Warranty. GoNative represents and warrants to and covenants with you that GoNative will not host, record, store or retain information that identifies third party end users of the Licensed Applications.

5.3  App Manager Representation and Warranty. App Manager represents and warrants to and covenants with GoNative that: (a) App Manager Data will not contain information about an identifiable third party end user of the Licensed Applications; and (b) to the extent that App Manager Data contains any information about an identifiable individual, including any Permitted User, App Manager has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable GoNative to use such App Manager Data in accordance with these Online Terms.

5.4  DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE ONLINE TERMS, GONATIVE DOES NOT REPRESENT OR WARRANT THAT THE MEDIAN SOLUTION WILL BE UNINTERRUPTED, FREE OF ERRORS OR DEFECTS OR THAT ALL ERRORS AND DEFECTS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE OFFERINGS.  EXCEPT AS SPECIFICALLY PROVIDED IN THESE ONLINE TERMS, THE MEDIAN SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GONATIVE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. APP MANAGER ACKNOWLEDGES AND AGREES THAT APP MANAGER WILL BE SOLEY RESPONSIBLE FOR ENSURING THAT THE MEDIAN SOLUTION IS SUFFICIENT FOR APP MANAGER’S NEEDS.

5.5  Indemnity. App Manager will defend, indemnify, and hold harmless GoNative and its respective employees, officers, directors, and representatives from and against any claim, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any third party claim concerning:

(a) App Manager Data, including any claim that any App Manager Data, or any part thereof, infringes or misappropriates the rights of any third party, including intellectual property rights;

(b) use of the Offerings, including each Median Application, by App Manager, Permitted Users or App Manager’s third party end users except as expressly authorized under these Online Terms;

(c) App Manager’s violation of applicable law or the rights of a third party, including any intellectual property or privacy rights; or

(d) App Manager’s breach of these Online Terms.

5.6 Indemnity Process. App Manager will fully cooperate with GoNative in the defence of any claim defended by App Manager pursuant to its indemnification obligations under these Online Terms and will not settle any such claim without the prior written consent of GoNative. GoNative reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by App Manager, in which event App Manager will fully cooperate with GoNative in asserting any available defences.

6.  Limitation of Liability.

6.1  AMOUNT.  EXCEPT FOR A BREACH OF APP MANAGER’S CONFIDENTIALITY OR INDEMNITY OBLIGATIONS UNDER THESE ONLINE TERMS, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER IN CONNECTION WITH OR UNDER THESE ONLINE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY APP MANAGER IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE ONLINE TERMS WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL GONATIVE’S LICENSORS OR THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE ONLINE TERMS.

6.2  TYPE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL GONATIVE BE LIABLE TO APP MANAGER FOR: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (C) BUSINESS INTERRUPTIONS; (D) APP MANAGER’S USE OF THE MEDIAN SOLUTION; (E) COSTS FOR THE PROCUREMENT OF A SUBSTITUTE PRODUCT OR SERVICE; (F) PERSONAL INJURY OR DEATH; OR (G) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE ONLINE TERMS, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

7.  Confidentiality.

7.1  Definitions.  For the purposes of these Online Terms, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser”, and “Confidential Information” means information marked or otherwise identified in writing by a party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, a reasonable person should recognize as being confidential, and where Discloser is GoNative includes: (a) source code, including any Median Source Code; (b) any Offering documentation, demo or evaluation application, or project proposals; and (c) the terms and conditions of these Online Terms, including pricing and the Fees payable by App Manager for the Offerings; provided that Discloser’s Confidential Information does not include, except with respect to information about an identifiable individual: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

7.2  Confidentiality Covenants.  Recipient hereby agrees that during the Term and at all times thereafter it will not: (a) disclose Confidential Information of the Discloser to any person, except to its own personnel having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than these Online Terms, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under these Online Terms; or (c) remove, obscure or otherwise alter any proprietary notices, legends or labels, including brand, copyright, trademark and patent or patent pending notices, from any Confidential Information of the Discloser any proprietary legend. Each party will take reasonable precautions to safeguard the other party’s Confidential Information. Those precautions will be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

7.3  Exceptions to Confidentiality.  Notwithstanding Section 8.2 (Confidentiality Covenants), Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (c) in the case of GoNative, to potential assignees, acquirers or successors of GoNative if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of GoNative. Notwithstanding the foregoing, App Manager may not disclose GoNative’s source code, including any Median Source Code, to any third party without GoNative’s prior written consent.

8.  Term and Termination.

8.1  Term. These Online Terms are effective as of the Effective Date and will remain in effect until terminated by either party in accordance with the provisions of these Online Terms (the “Term”).

8.2  Termination.

(a)  Either party may terminate these Online Terms for any reason upon giving sixty (60) days’ prior written notice of termination to the other party.

(b)  Either party may terminate these Online Terms by giving to the other party written notice of termination upon the occurrence of any of the following events:  (i) the other party breaches any material provision of these Online Terms, and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within thirty (30) days after the breaching party’s receipt of written notice of such breach; (ii) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (iii) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution.

(c)  GoNative may terminate these Online Terms by giving you written notice of termination if you breach your payment obligations under Section 5 (Fees) and fail to cure such breach or default within thirty (30) days of receipt of written notice thereof.

(d)  You may terminate these Online Terms by giving GoNative written notice of termination if GoNative: (i) fails to perform its obligations under these Online Terms due to a Force Majeure Event (as defined below) that continues for a period exceeding thirty (30) days; or (ii) materially alters or ceases to provide the Median Solution and fails to address your reasonable concerns related to such alteration or cessation within thirty (30) days of receiving notice of such concerns.

8.3  Effect of Termination.

(a)  In the event that: (i) GoNative terminates these Online Terms in accordance with subsection 8.2(a); or (ii) App Manager terminates these Online Terms in accordance with subsection 8.2(b)(i), GoNative will refund to App Manager any unused, pre-paid Fees, as of the date of termination, for these Online Terms. Except as expressly stated otherwise in the Support and Maintenance Terms, any other termination will be without refund, credit or other compensation from GoNative.

(b)  Upon expiration or termination of these Online Terms: (i) App Manager must immediately cease any and all use of the Median Platform; (ii) within thirty (30) days of expiration or termination, each party will destroy or deliver to the other party all copies of the other party’s Confidential Information; and (iii) GoNative will have no further obligation to support, maintain, provide or make available the Offerings, or any portion thereof, to App Manager.

(c)  Expiration or termination of these Online Terms will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve App Manager of its obligation to pay all amounts and Fees that have accrued or are otherwise owed by App Manager under these Online Terms up to the effective date of termination. Subject to App Manager’s compliance with the foregoing payment obligations and the terms of these Online Terms that survive expiration or termination of these Online Terms pursuant to Section 9.4 (Survival), App Manager may continue to access and use the Median Applications following termination of these Online Terms.

8.4  Survival. Upon any termination or expiration of these Online Terms, provisions contained in these Online Terms that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of these Online Terms, including Sections 1.3 (Proprietary Rights), 2.2 (Median Free License Grant); 2.3 (Permitted Users); 2.4 (GoNative Professional Licenses); 2.5 (License Conditions); 2.6 (Prohibited Uses); 4 (Payment), 5 (Warranties; Disclaimer; Indemnity), 6 (Limitation of Liability), 7 (Confidentiality), 8.3 (Effect of Termination), 8.4 (Survival), and 9 (General).

9.  General.

9.1  Notice.

(a)  All notices required by or relating to these Online Terms must be in writing and will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by registered mail or by an internationally recognized express mail carrier (postage prepaid, return receipt requested).

(b)  Notices to GoNative will be sent:

(i)  to the following email address:‍

[email protected]; and

(ii)  to the following address:

10 Allen Road,
Wellesley, MA 02481.

(c)  GoNative may change its contact information by posting the new contact information on the Median Platform or by giving notice thereof to App Manager in accordance with this Section.

(d)  Notices to App Manager will be sent to the current postal or email address that GoNative has on file with respect to the App Manager. App Manager is solely responsible for keeping its contact information on file with GoNative current at all times during the Term.

9.2  Publicity. GoNative may use App Manager’s name, trademarks, logos, and public app store listing details for press releases, case studies, and other purposes in connection with identifying App Manager as a customer of GoNative or a user of GoNative’s Offerings. App Manager agrees that GoNative may refer to App Manager as a user or customer of GoNative: (a) in announcements, press or marketing releases, publications, presentations, case studies and other public statements; and (b) on the Median Platform and other online channels (collectively, “Publicity”). GoNative may disclose any testimonials received from App Manager in any such Publicity.  App Manager grants GoNative a limited, perpetual, fully paid-up, irrevocable, non-exclusive, non-transferable, and non-sublicensable license to use its logo and trademarks in connection with any Publicity.

9.3  Assignment. These Online Terms are binding upon and for the benefit of the parties, their permitted successors and permitted assigns. App Manager may not transfer, sublicense or otherwise assign these Online Terms or any of its rights or obligations under these Online Terms, by operation of law or otherwise, without GoNative’s prior written consent, which consent will not be unreasonably withheld. Any attempted transfer, sublicense or assignment by App Manager in violation of this Section will be null and void. GoNative may assign, transfer, or delegate these Online Terms and any or all of its rights and obligations under these Online Terms without App Manager’s consent.

9.4  Compliance with Laws. The parties will comply with all applicable laws, rules and regulations, including export laws, in the performance of their obligations under these Online Terms. You must ensure that your use of the Offerings complies in all respects and at all times with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the parties or the Offerings are subject to, including by means of obtaining any permits, licenses, or approvals required with respect to applicable export regulations.

9.5  Export. App Manager agrees not to directly or indirectly export, re-export or import any part of the Median Platform without first obtaining all required licenses, permits and permissions. GoNative makes no representation or warranty that the Median Platform, or any portion thereof, may be exported without App Manager first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

9.6 Remedies. (a)  Without limiting GoNative’s other rights under these Online Terms, in the event that you fail to comply with your obligations under these Online Terms and the Support and Maintenance Terms, including your obligations to comply with the use and license restrictions in Section 2 (The Median Solution) and to pay applicable Fees in accordance with Section 4 (Payment), GoNative reserves the right to take any and all appropriate action, which may include: (i) revoking licenses granted to you under these Online Terms; (ii) following revocation of the applicable licenses pursuant to clause (i), submitting formal request(s) for the removal of one or more Licensed Applications from public app stores due to the use of unlicensed source code; (iii) preventing access to or use of the Offerings; (iv) withholding all or a portion of the Offerings until you have paid in full all amounts owed to GoNative or rectified your failure to comply with the applicable license restrictions or use requirements; and (v) charging interests on late payments at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

(b)  You acknowledge and agree that your breach or threatened breach of Section 2 (The Median Solution) or Section 8 (Confidentiality) would cause GoNative irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, GoNative will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.

(c)  Such remedies are not exclusive and are in addition to all other remedies that may be available to GoNative law, in equity or otherwise.

9.7  Force Majeure. Subject to subsection 9.2(d), if GoNative fails to perform any obligation under these Online Terms due to an act of God, fire, flood, earthquake, explosion, accident, strike, embargo, internet service failures or delays, network intrusion, cyberattacks, data loss, terrorist attack, war, insurrection or riot, civil unrest, public states of emergency, pandemics, epidemics, GoNative’s compliance with any requirement of applicable law, unavailability or modification by third parties of telecommunications or hosting infrastructure or third party software or websites, acts or omissions of App Manager or any third parties, or other causes beyond GoNative’s reasonable control (each, a “Force Majeure Event”), including any delays in performance due to a Force Majeure Event, and, where applicable, GoNative has implemented commercially reasonable back up standards, GoNative: (a) will not be liable for such failure; and (b) will be excused from the performance of such obligations for the duration of the Force Majeure Event and any additional period of time as may be reasonable under the circumstances.

9.8  Governing Law. These Online Terms, and any disputes arising out of or related hereto, are governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the State of Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Online Terms. GoNative and App Manager each hereby consent and submit to the exclusive jurisdiction of such courts.

9.9  Non-Solicitation. During the Term and for a period of 12 months thereafter, App Manager may not solicit or recruit any personnel of GoNative, including any of its employees or contractors, that it has come in contact with, in connection with these Online Terms, except the foregoing will not apply to general solicitation or recruitment not targeted at the personnel of GoNative.

9.10  Severability.  Any provision of these Online Terms found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from these Online Terms and all other provisions of these Online Terms will remain in full force and effect.

9.11  Waiver.  A waiver of any provision of these Online Terms must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

9.12  Construction.  Except as otherwise provided in these Online Terms, the parties’ rights and remedies under these Online Terms are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Online Terms are for reference purposes only and have no substantive effect.

9.13  Independent Contractors.  GoNative’s relationship to App Manager is that of an independent contractor, and neither party is an agent or partner of the other. Nothing contained in these Online Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.

9.14  Entire Agreement. Except as expressly stated otherwise in these Online Terms, these Online Terms, including the Support and Maintenance Terms and any Professional Licenses incorporated into these Online Terms by reference, constitute the entire agreement between the parties with respect to the subject matter of these Online Terms and supersede all prior or contemporaneous agreements, representations or other communications, whether oral or written.