Curbside Developer Agreement and ARRIVE SDK Terms of Use

THESE TERMS FORM A BINDING AGREEMENT; PLEASE REVIEW THEM CAREFULLY

CURBSIDE, INC. (“CURBSIDE”) IS WILLING TO PERMIT USE OF THE CURBSIDE ARRIVE SDK AND OTHER SOFTWARE AND SERVICES COVERED BY THIS CURBSIDE DEVELOPER AGREEMENT AND THE ARRIVE SDK TERMS OF USE INCORPORATED HEREIN (COLLECTIVELY, THE “AGREEMENT”) ONLY TO PERSONS (“DEVELOPERS”) WHO AGREE TO ALL OF THE TERMS CONTAINED HEREIN. THE DEVELOPER WHO EXECUTES THIS AGREEMENT (OR HAS THIS AGREEMENT EXECUTED ON ITS BEHALF) WILL ALSO BE ENROLLED IN CURBSIDE’S DEVELOPER PROGRAM, WHICH IS DESCRIBED IN MORE DETAIL BELOW.

ANY PERSON OR ENTITY THAT DESIRES TO OBTAIN AND USE CURBSIDE’S ARRIVE SDK (SUCH PERSON OR ENTITY, A “DEVELOPER”) MUST AFFIRMATIVELY INDICATE ITS ACCEPTANCE OF THIS LICENSE AGREEMENT IN THE MANNER REQUIRED BY CURBSIDE. BY INDICATING SUCH ACCEPTANCE AND PROCEEDING WITH ANY INSTALLATION AND USE OF THE ARRIVE SDK AND/OR OTHER CURBSIDE SOFTWARE, DEVELOPER IS AGREEING TO ALL OF THE TERMS OF THIS AGREEMENT. CURBSIDE IS NOT WILLING TO PERMIT USE OF ITS SOFTWARE BY ANY PERSON WHO IS UNWILLING OR UNABLE TO AGREE TO ALL OF THESE TERMS; ANY PROSPECTIVE DEVELOPER WHO CANNOT OR WILL NOT AGREE TO ALL OF THESE TERMS MUST EXIT OUT OF THE AGREEMENT REVIEW AND ACCEPTANCE PROCESS IMMEDIATELY, AND THEREAFTER MAY NOT CONTINUE WITH ANY USE OF CURBSIDE SOFTWARE OR SERVICES COVERED BY THIS AGREEMENT.

ANY PERSON THAT IS INSTALLING THE SOFTWARE ON BEHALF OF SOMEONE ELSE, WHETHER AN EMPLOYER, A CUSTOMER, A CLIENT OR ANY OTHER THIRD PARTY, MUST BE PREPARED TO DEMONSTRATE TO CURBSIDE THAT HE OR SHE IS AUTHORIZED TO ACT ON BEHALF OF AND ACCEPT THIS LICENSE FOR THAT THIRD PARTY AS DEVELOPER; PROVIDED, THAT CURBSIDE WILL BE ENTITLED TO ASSUME THAT ANY PERSON ACCEPTING THIS AGREEMENT ON A DEVELOPER’S BEHALF IS AUTHORIZED TO DO SO, AND TO BIND THE DEVELOPER TO THE TERMS OF THIS AGREEMENT.

This Agreement, which sets forth the terms pursuant to which Developer may download, evaluate and use Curbside’s ARRIVE software development kit (the “ARRIVE SDK”), is effective as of the date that this Agreement is accepted by Developer or on Developer’s behalf (the “Effective Date”). Developer agrees as follows:

  1. Integration and Use of the ARRIVE SDK; Curbside Developer Program.

    1. License and Access Rights. Subject to Developer’s compliance with the terms and conditions of this Agreement, Curbside grants Developer the right and license during the License Term (defined below) to develop one or more mobile applications (each, a “Developer App”) that include arrival detection services provided by use of the ARRIVE SDK, and to: (a) use the object code libraries, application programming interfaces (or “APIs”), and documentation specified in the ARRIVE SDK in connection with and for integration into any Developer Apps; (b) access and use the developer dashboard (the “Dashboard”) provided by Curbside to allow Developer to see real- time usage statistics, obtain usage keys, and configure locations (each, a “Monitored Location”) that will be using the ARRIVE SDK to provide arrival detection and related services to customers of such Monitored Locations; and (c) access and use Curbside’s proprietary suite of computer, tablet and mobile software applications that have been developed by or are otherwise proprietary to Curbside (collectively, the “Curbside Platform”) and that enable or otherwise support operation and use of the ARRIVE SDK and Curbside’s arrival detection services.

    2. Restrictions. Developer will not: (a) modify or delete any copyright, trademark, or other proprietary notices of Curbside or its licensors that are included in or generated by the ARRIVE SDK; (b) reverse engineer, decompile, disassemble, or otherwise tamper with or seek to discover any source code included in the ARRIVE SDK (except and only to the extent that any such restrictions are prohibited by applicable law); or (c) modify any of the object code libraries or APIs included with or specified in the ARRIVE SDK. Developer may not use Curbside APIs other than pursuant to this Agreement and as documented in the ARRIVE SDK. Without limiting the foregoing, and except as may be expressly authorized by Curbside in its sole discretion, Developer will not be entitled to make any modifications to the ARRIVE SDK or to any other software made available by Curbside hereunder.

    3. Fees. Subject to Developer complying with the terms and conditions of this Agreement, and limiting its use of the ARRIVE SDK as required by Section 1.4(b) below, Developer will not be charged for use of the ARRIVE SDK during the Initial License Term hereof; provided, however, that if Developer desires to continue use of the ARRIVE SDK after the Initial License Term, or desires to exceed the permitted number of Monitored Locations or customer pickups, arrivals or other trips detected by Developer Apps (each such customer pickup, arrival or other trip, a “Trip”) during the Initial License Term, Developer will be required to begin paying fees for such use of the ARRIVE SDK, and the License Term hereof will extend and continue for as long as Developer is paying such fees. Upon Developer’s request, Curbside will provide Developer with information regarding the fees that apply to such continued or expanded use of the ARRIVE SDK.

    4. Developer Program; Additional Products and Services.

      • Curbside Developer Program. By accepting this Agreement, Developer is also agreeing to enroll (and be enrolled) in Curbside’s developer program (the “Developer Program”) for as long as this Agreement remains in effect. By enrolling in the Developer Program, Developer is agreeing to be notified of new developer-facing products, services, forms, documentation, and other items from time to time as Curbside makes such items available (and where Curbside determines to provide such notice to participants in the Developer Program). Developer may also be given the opportunity to be pre-registered for or pre-enrolled in trials or evaluations of these new Curbside programs, products and services. After the Initial License Term, Developer may request removal from the Developer Program at any time by providing Curbside with a written removal request.

      • Additional Products and Services. From time to time during the Term hereof, Curbside may elect (in its sole discretion) to make available to Developer and to other developers using the ARRIVE SDK certain additional products and services relevant to the ARRIVE SDK and Developer’s use thereof. Curbside will provide a general notice (in a format or formats selected by Curbside) to its developers of such additional products and services, which notice will also indicate any applicable fees, as well as the manner in which Developer can order, request, or otherwise obtain permission to use such additional products or services.

  2. Requirements and Limitations; Guidelines.

    1. Requirements. In order to access and use the ARRIVE SDK and Curbside Platform, Developer will need to sign up for an account with Curbside (and provide complete and accurate answers to all Curbside requests for information in connection with that account registration process); once Developer has registered with Curbside and accepted and agreed to this Agreement, Developer will be permitted to download the ARRIVE SDK, for implementation, integration and use with Developer Apps during the License Term as permitted by this Agreement. Developer understands and agrees that Curbside reserves the right, at any time and without liability, to change the features and functionality of the ARRIVE SDK and/or the Curbside Platform and/or the Developer Program, which changes might include, without limitation and by way of example only, disabling APIs or limiting API calls. Curbside will use commercially reasonable efforts to provide Developer with prior notice of any such changes made during the Term hereof. If Developer does not agree to the changes, Developer’s sole course of action will be to stop using the ARRIVE SDK and terminate the License Term or this Agreement in its entirety.

    2. Limitations. Developer’s use of the ARRIVE SDK for no charge under this Agreement is subject to and conditioned on Developer’s compliance with the following limitations, and any use in excess of these limitations will cause Developer to begin to incur fees (or may subject Developer to immediate termination of its rights to the ARRIVE SDK):

      • Developer can use the ARRIVE SDK at up to five Monitored Locations; and

      • Developer can use the ARRIVE SDK for up to 100,000 Trips in the aggregate across all Monitored Locations for which Developer has installed and implemented the ARRIVE SDK.

    3. Guidelines. In addition, Developer’s use of the ARRIVE SDK and of any Developer App must:

      • comply with any guidelines set forth in the documentation provided to Developer via the Dashboard or included with or referenced in the ARRIVE SDK, as updated from time to time;

      • comply with any and all applicable laws, rules, or regulations;

      • not result in any modification or damage to, or deletion or disabling of the Curbside Platform or any other Curbside software or services; and

      • not disrupt, interfere with, or access in an unauthorized manner the Curbside Platform or any Curbside software or servers.

    4. Access. Curbside may, in its reasonable discretion and without prior notice to Developer, suspend Developer’s use of the ARRIVE SDK and access to the Curbside Platform at any time if Curbside believes that (a) Developer is in breach of any obligations under this Agreement; (b) a Developer App or Developer’s use of the ARRIVE SDK poses a security risk; (c) there is a bug or performance issue with a Developer App or Developer’s use of the ARRIVE SDK; (d) a Developer App or Developer’s use of the ARRIVE SDK violates, misappropriates, or infringes the rights of Curbside or a third party; or (e) a Developer App or Developer’s use of the ARRIVE SDK imposes unexpected or excessive demands on the Curbside Platform. Upon any such suspension, Developer and Curbside will cooperate in good faith to identify the cause of the issue giving rise to the suspension, and without limiting any of Curbside’s other rights, no suspension will be lifted until Developer can demonstrate to Curbside’s reasonable satisfaction that Developer has removed or otherwise remedied the issue or issues giving rise to the suspension.

    5. Backups; Data Recovery Fee. Developer is, and at all times during and after the Term hereof shall be, solely responsible for maintaining current, backup copies of all Developer software and data (which may include, without limitation, Developer Apps as well as any Developer content included in or used in connection with such Developer Apps). In the event that Developer requires assistance from Curbside in order to restore backups or otherwise recover data or information that Developer has lost, Curbside will be entitled to charge (and Developer will be obligated to pay as a condition of receiving such assistance) a data recovery fee that will be based on the time and materials required of Curbside and its personnel in order to provide such assistance.

  3. Intellectual Property and Related Rights and Obligations.

    1. IP Rights. This Agreement does not: (a) provide Developer with any right or license (whether expressly, by implication, by estoppel, or otherwise) under any of Curbside’s intellectual property rights other than to use the ARRIVE SDK during the License Term solely in the manner and solely to the extent authorized in Section 1.1; or (b) impair the right of Curbside to develop, make, use, procure, protect, market and/or exploit any products or services. Curbside reserves all rights not expressly granted to Developer. In consideration for the rights granted hereunder, Developer will not assert or authorize, assist, or encourage any third party to assert any intellectual property infringement claim against Curbside or any of its affiliates, customers, or Developers regarding any portions of the SDK or any features or functions enabled by the SDK.

    2. Publicity and Confidentiality. Neither party will issue any press release, public statement or other form of publicity relating to this Agreement without the prior written consent of the other party; provided, however, that Curbside will be entitled to identify Developer as a Curbside ARRIVE SDK developer and user (and include Developer’s name and logo) in its print and online marketing materials. Developer understands and agrees that the contents of the ARRIVE SDK and other software and materials made available by Curbside hereunder constitute the confidential information of Curbside.

  4. Usage Data. Curbside and the Curbside Platform collect certain information, analytics, and data from the ARRIVE SDK and in connection with Developer’s use of the ARRIVE SDK (the “Usage Data”), and Curbside will own and retain all right, title, and interest in such Usage Data. Developer acknowledges and agrees that Curbside may collect any Usage Data produced by or resulting from any Developer App, and that Curbside may use such Usage Data in an aggregated and anonymized manner for any purpose.

  5. Open Source. Developer will:

    • comply with all applicable open source software (or “OSS”) licensing terms and obligations (including any notice and attribution requirements) relevant to the Developer App or any access and use of the Curbside Platform by Developer, and cooperate with all reasonable requests by Curbside to verify such compliance;

    • not use any OSS in any Developer App in such a way that would (i) cause any Curbside software (including the ARRIVE SDK) to be subject to any OSS licensing terms or obligations, or (ii) purport to require Curbside (or its agents) to disclose or make available any of the keys, authorization codes, methods, procedures, data or other information related to Curbside technology; and

    • not use in any Developer Apps any OSS that is licensed under the GPLv3, LGPLv3, Affero GPLv3, or Sleepycat OSS licenses.

  6. Feedback. Developer may, but is not obligated to, provide Curbside any feedback, comments, or suggestions (collectively, “Feedback”). Developer understands and agrees that: (i) any Feedback will be provided on a non-confidential basis; (ii) Curbside will have no obligation to review, consider, or implement any Feedback that Developer provides; and (iii) Curbside and its successors and assigns will have, Developer irrevocably grants and agrees to grant to Curbside and its successors and assigns, perpetual and unlimited permission to use, reproduce, modify, distribute, display, and perform any Feedback and any derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback, whether in whole or in part, and whether as provided by Developer or as subsequently modified by Curbside or by any third party.

  7. Term and Termination.

    1. Term; License Term. The term of this Agreement will begin on the Effective Date and continue until terminated in accordance with this Section 7 (the “Term”); provided, that Developer’s right to use the ARRIVE SDK and any related Curbside Software under this Agreement will begin on the Effective Date and will continue for a period of 60 days (the “Initial License Term”), subject to any extension thereto pursuant to the terms of Section 1 above. As used herein, “License Term” refers to the Initial License Term and any extension thereto (e.g., where Developer continues to use the ARRIVE SDK after the Initial License Term by paying fees therefor as described under Section 1.3 above).

    2. Termination.

      • For Convenience. After expiration of the Initial License Term, either party may terminate this Agreement at any time by sending written notice of termination to the other party. For the avoidance of doubt, neither party will be entitled to terminate this Agreement for convenience during the Initial License Term.

      • For Breach. In the event of any breach of this Agreement by Developer during the License Term, Curbside will be entitled to terminate Developer’s use of the ARRIVE SDK and/or this Agreement immediately by providing Developer written notice of termination, specifying the Developer breach responsible for such termination. In the event of any breach of this Agreement by Developer other than during the License Term, or in the event of any breach of this Agreement by Curbside at any time, the non-breaching party will be entitled to terminate this Agreement upon 10 days prior written notice if the other party fails to remedy the breach during such 10-day period.

    3. Effects of Termination. Upon termination of this Agreement during the License Term: (i) Curbside may immediately disable Developer’s use of the ARRIVE SDK and any related Curbside software or services; and (ii) Developer will immediately cease using the ARRIVE SDK (including any Developer App or feature or portion thereof that uses or otherwise depends on the ARRIVE SDK) and delete all copies it has in its possession or under its control. Upon termination of this Agreement other than during the License Term, Developer’s participation in, and Developer’s access to products, services and information under, the Developer Program will immediately end, and Developer will have no further right to access or use any such products, services or information, or to identify itself as affiliated with Curbside or the Curbside Software in any way. This section and Sections 1.2 - 1.4, 2, 5-11 will survive termination of this Agreement.

  8. Disclaimer of Warranties. CURBSIDE IS PROVIDING DEVELOPER WITH THE ARRIVE SDK, WITH ACCESS TO AND USE OF THE CURBSIDE PLATFORM, AND WITH PARTICIPATION IN THE DEVELOPER PROGRAM ON AN “AS IS” BASIS AND WITHOUT WARRANTIES OF ANY KIND, AND DEVELOPER’S USE OF THE ARRIVE SDK, THE CURBSIDE PLATFORM AND THE DEVELOPER PLATFORM IS AT DEVELOPER’S SOLE RISK. TO THE GREATEST EXTENT PERMITTED BY LAW, CURBSIDE AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

  9. Limitation of Liability. CURBSIDE WILL NOT BE LIABLE TO DEVELOPER UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF CURBSIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT WILL CURBSIDE’S LIABILITY TO DEVELOPER ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $500.00.

  10. Indemnification. Developer will indemnify, defend, and hold harmless Curbside and its officers, directors, employees, and agents from and against any and all third-party claims, demands, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to: (a) Developer’s use of the ARRIVE SDK and use of and access to the Curbside Platform; (b) any development or use of a Developer App, whether by Developer or by any third party (including without limitation end users of any Developer App); and (c) Developer’s breach of this Agreement (including, without limitation, any failure by any of Developer’s employees, contractors, end users or affiliates to comply with any of the terms and conditions of this Agreement). Curbside will use commercially reasonable efforts to provide Developer with prompt notification of any claim for which Curbside seeks an indemnity, but Curbside’s failure to provide such notice will not limit Developer’s obligation to indemnify Curbside except to the extent that Developer has been materially harmed by such failure to provide prompt notice. Curbside will cooperate in Developer’s defense of any claim, at Developer’s sole expense. Developer may not settle any claim against Curbside in a manner that adversely affects Curbside without Curbside’s prior written consent, which consent will not be unreasonably withheld. Curbside may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if Developer is unwilling, or if Curbside reasonably determines that Developer is unable to defend the interests of Curbside, then Curbside may assume the defense against any claims at Developer’s expense. Curbside will not settle any claim for which Developer is obligated to indemnify Curbside without Developer’s prior written consent, which consent will not be unreasonably withheld or delayed.

  11. General Legal Terms.

    1. Assignment. Developer may not assign or transfer this Agreement (or any of Developer’s rights or obligations under this Agreement) (a) without Curbside’s prior written consent, and (b) where consent has been granted, by ensuring that any assignee or transferee agrees to be bound by this Agreement in the same manner as Developer (including with respect to any intellectual property rights). Any attempted assignment or transfer without complying with the preceding sentence will be void. Curbside may freely assign or transfer this Agreement. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and permitted assigns.

    2. Entire Agreement; Amendments. This Agreement supersedes any and all prior discussions and writings regarding, and constitutes the entire agreement between the parties with respect to, Developer’s use of the ARRIVE SDK. The parties may only amend this Agreement in a writing executed by both parties. No employee, agent, or other representative of Curbside has any authority to bind Curbside with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.

    3. Export. Developer will not (whether directly or indirectly) export or re-export all or any part of the ARRIVE SDK to: (a) any countries that are subject to US export restrictions (such as, by way of example and not limitation, Cuba, Iran, North Korea, Sudan, and Syria); (b) any third party who Developer knows or reasonably should know will utilize the ARRIVE SDK for prohibited end uses (such as, by way of example and not limitation, for the design, development or production of nuclear, chemical or biological weapons); or (c) any third party who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government (such as someone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List).

    4. Governing Law and Venue. This Agreement is to be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. Developer and Curbside: (a) will bring any disputes arising out of or related to this Agreement exclusively in a state or federal court located in Santa Clara County, California; and (b) hereby irrevocably submit to the exclusive personal jurisdiction of such courts.

    5. Irreparable Harm. Developer agrees that any actual or threatened breach of this Agreement by Developer would cause immediate and irreparable harm to Curbside, the value of which would be difficult or impossible to determine and for which monetary damages would be inadequate compensation. Accordingly, in addition to any other remedies, Curbside will be entitled to obtain injunctive relief or specific performance from any court of competent jurisdiction to prevent any such breaches and Developer expressly waives: (a) the defense that monetary damages would be adequate compensation for Curbside; (b) the defense that the harm to Developer and/or to others would outweigh the harm to Curbside; and (c) any requirement that Curbside post a bond or other security.

    6. Notices. To be valid, all notices permitted or required under this Agreement must in writing and delivered by hand, by email, by overnight courier, or via certified mail; provided, that email notices will only be valid whether the receiving party expressly acknowledges and confirms receipt. Notices will be deemed given on receipt by the applicable party. Curbside will send notices to Developer’s email or postal address on file with Curbside (which addresses may be updated by Developer via the Dashboard), and Developer will send notices to Curbside’s then-current addresses identified on the “Contact Us” page of the Curbside website or in any Curbside mobile application.

    7. Relationship. This Agreement does not confer any third party beneficiary rights and does not create a joint venture, agency, partnership, or other form of joint enterprise between the parties. Except as expressly provided herein, neither party has the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. There are no intended third party beneficiaries of this Agreement.

    8. Severability, Waiver, and Interpretation. If any provision of this Agreement is found to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. No waiver of any breach of this Agreement will constitute a waiver of any other breach. In construing or interpreting the terms of this Agreement: (a) the headings in this Agreement are for convenience only, and are not to be considered, and (b) no presumption is to operate in either party’s favor as a result of its counsel’s role in drafting this Agreement.

BY TAKING ANY REQUIRED ACTION TO INDICATE ACCEPTANCE OF THIS AGREEMENT, DEVELOPER (OR DEVELOPER’S REPRESENTATIVE) IS ACKNOWLEDGING ITS UNDERSTANDING OF THIS AGREEMENT, AND THAT DEVELOPER WILL BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.