Xamarin Software License Agreement

Last updated: November 12, 2015

1. ACCEPTANCE

PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING OR OTHERWISE USING THE SOFTWARE (INCLUDING ITS COMPONENTS), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE.

This Xamarin Software License Agreement (“Agreement”) is a legal agreement between You (an entity or a person) and Xamarin Inc. (“Xamarin”). If You are entering into this Agreement on behalf of a company, organization, or other entity, then (i) references to “You” in this Agreement include You and that entity, and (ii) You represent and warrant that You are an authorized representative of such entity with the authority to bind such entity to this Agreement, and (iii) You agree to the terms and conditions of this Agreement on such entity’s behalf. For clarity, You have no right to use or access any Software unless (a) You have executed a subscription agreement or an order form that expressly references and incorporates the terms and conditions of this Agreement (including Software purchases made via Xamarin’s online store located at https://store.xamarin.com) (an “Order Form”), or (b) You have otherwise manifested Your assent to this Agreement, electronically or otherwise, prior to accessing or using the Software.

2. DEFINITIONS

The capitalized terms set forth below shall have the following meanings:

"Organization" means a legal entity, excluding subsidiaries and affiliates with a separate existence for tax purposes or for legal personality purposes. An example of an Organization in the private sector would be a corporation, partnership, or trust, excluding any subsidiaries or affiliates of the Organization with a separate tax identification number or company registration number. In the public sector, an example of Organization would be a specific government body or local government authority.

“Redistributables” shall have the meaning set forth in Section 4 below.

“Separately Licensed Components” shall have the meaning set forth below.

“Software” means the Xamarin software product(s), more fully described at http://xamarin.com/platform, to which You have obtained or purchased a license or Subscription (as defined below), including the Redistributables, Updates (each as defined below), and accompanying documentation. References to the “Software” exclude all separately licensed components, including those identified at http://xamarin.com/mobile-licensing, that are subject to separate license terms (collectively, “Separately Licensed Components”).

“Subscription” shall have the meaning set forth in Section 3.1 below.

“Subscription Term” shall have the meaning set forth in Section 14 below.

“Support Services” shall have the meaning set forth in Section 7 below.

“Updates” shall have the meaning set forth in Section 7 below.

“Your Application” means a software application developed or distributed by You or on Your behalf using the Software for the operating system for which You have licensed or purchased a Subscription to the Software.

3. RIGHTS AND LICENSES

3.1. General. You must acquire one of the following types of licenses to the Software (as identified on an Order Form or in documentation accompanying the Software), each of which permits access to and use of the Software by a single individual only during the applicable license term or Subscription Term: (i) a Xamarin Evaluation license, (ii) a Starter Edition license, (iii) an Indie Subscription, (iv) a Business Subscription; or (v) an Enterprise Subscription, ((iii) through (v) being referred to herein as “Subscriptions”) for each copy of the Software used or accessed by You and/or within Your Organization. Unless otherwise agreed in writing between You and Xamarin, You must acquire the same type of license or Subscription for every copy of the Software used by You or within Your Organization, and each license or Subscription You acquire must be assigned to You (if you are an individual) or to a specific individual within Your Organization. Software licenses or Subscriptions may not be shared among individuals or assigned to individuals outside Your Organization without the prior written consent of Xamarin. A Software license or Subscription must be obtained for every individual who either: (a) uses the Software, (b) distributes the Redistributables, (c) develops or provides source code, libraries, configuration parameters or data to Your Applications, or (d) has otherwise been granted access to the Software or assigned a license or Subscription to the Software, whether or not such individual ever activates the assigned license or Subscription. You may not install the Software on build servers without Xamarin’s prior written consent, or use other means of sharing single copies of the Software among more than one (1) individual. Notwithstanding anything to the contrary stated herein, no person or entity is authorized hereunder to use the Software to provide a product or service that generates or otherwise automates the development or distribution of software applications or other software for third parties, and such use is expressly prohibited.

3.2. Xamarin Evaluation Rights and Restrictions. If Your license is a Xamarin Evaluation license, Xamarin hereby grants to You a nonexclusive, non-transferable license to use the Software to internally develop Your Application solely as permitted in this paragraph. For the avoidance of doubt, no rights to any Redistributables are granted to You under a Xamarin Evaluation license and you may not distribute or otherwise make available the Redistributables or Your Application to any third party. Your Xamarin Evaluation license to use the Software is limited solely to internal evaluation purposes, in accordance with the terms of the evaluation offering under which You received the Software, and Your license expires thirty (30) days from installation (or such other period as may be indicated within the Software). Upon expiration of the evaluation period, You must discontinue use of the Software and return to an original state any actions performed by the Software. The Software may contain an automatic disabling mechanism that prevents its use after a certain period of time.

3.3. Starter Edition Rights and Restrictions. If Your license is a Starter Edition license, Xamarin hereby grants to You a nonexclusive, non-transferable license to use the Software to internally develop Your Application solely as permitted in this paragraph, and to distribute the Redistributables as part of Your Application solely as permitted in Section 4 below titled "Redistributables". Starter Edition licenses may be used only by individuals or Organizations with no more than five (5) employees. Your Applications developed with Starter Edition licenses: (i) may not contain more of Your compiled code than the limit advertised by Xamarin for the Software that You have received, (ii) may not make direct calls to unmanaged libraries (for clarity, an “unmanaged library” is any software library not executing under the control of the Redistributables), (iii) may not be designed to be used in connection with the internal business operations of an Organization, and (iv) may only be distributed publicly through an application store as more fully described in Section 4 below. The assigned user for a Starter Edition license may not be re-assigned, temporarily or otherwise.

3.4. Indie Subscription Rights and Restrictions. If Your Subscription is an Indie Subscription, solely during the applicable Subscription Term, Xamarin hereby grants to You a nonexclusive, non-transferable license to use the Software to internally develop Your Application solely as permitted in this paragraph, and to distribute the Redistributables as part of Your Application solely as permitted in Section 4 below titled "Redistributables". Indie Subscriptions may be used by individuals or Organizations with no more than five (5) employees. For clarity, You will not be classified as an "individual" for purposes of this Section if You are licensing the Software to perform services for, or on behalf of, Your employer or any Organization. Your Applications developed with Indie Subscriptions may not be designed to be used in connection with the internal business operations of an Organization, and may only be distributed publicly through an application store as more fully described in Section 4 below. The assigned user for an Indie Subscription may not be transferred or re-assigned, temporarily or otherwise.

3.5. Business Subscription Rights and Restrictions. If Your Subscription is a Business Subscription, solely during the applicable Subscription Term, Xamarin hereby grants to You a nonexclusive, non-transferable license to use the Software to internally develop Your Application solely as permitted in this paragraph, and to distribute the Redistributables as part of Your Application solely as permitted in Section 4 below titled "Redistributables". Business Subscriptions may include additional Software features and functionality as more fully described in an Order Form or at http://store.xamarin.com/ <https://store.xamarin.com/>.

3.6. Enterprise Subscription Rights and Restrictions. If Your Subscription is an Enterprise Subscription, solely during the applicable Subscription Term, Xamarin hereby grants to You a nonexclusive, non-transferable license to use the Software to internally develop an Application solely as permitted in this paragraph, and to distribute the Redistributables as part of Your Application solely as permitted in Section 4 below titled "Redistributables". Enterprise Subscriptions may include additional Software features and functionality as more fully described in an Order Form or at http://store.xamarin.com/ <https://store.xamarin.com/>.

4. REDISTRIBUTABLES

4.1. Definitions. “Redistributables” for the Android operating system platform means libmonosgen-2.0.so, libmonodroid.so, Mono.Android.dll and mono.android.jar. “Redistributables” for the iOS operating system means libmono.a, libmonotouch.a and monotouch.dll. “Redistributables” for the MAC OS X operating system means libxammac.a, libmono-2.0.a, monomac.dll, XamMac.dll, and Xamarin.Mac.dll.

4.2. License to Redistributables. If Your Subscription is an Indie Subscription, Business Subscription, or an Enterprise Subscription, or if you have a Starter Edition license, Xamarin hereby grants to You a worldwide, nonexclusive, non-transferable license to reproduce, distribute, perform, and display the Redistributables in binary code form only, solely as part of Your Application that You developed using the Software, and only for the operating system for which You licensed the Software (i.e., Android, iOS or MAC OS X).

4.3. Android Distribution. If Your Subscription is an Indie Subscription for the Android operating system platform, or if you have a Starter Edition license for the Android operating system platform, You may only directly distribute Your Application via Google Play, Amazon Appstore, or competing public app stores for the Android platform, or if not directly distributing Your Application through a public app store, then for deployment directly to end-user Android devices on no more than 100 devices. If Your Subscription is a Business Subscription or an Enterprise Subscription for the Android operating system platform, You may only distribute Your Application directly via Google Play, Amazon Appstore, or competing public app stores for the Android platform or, if not distributing Your Application through a public app store, then for deployment directly to end-user Android devices.

4.4. iOS Distribution. If Your Subscription is an Indie Subscription for the iOS operating system, or if you have a Starter Edition license for the iOS operating system, You may only distribute Your Application via the Apple App Store for iOS. If Your Subscription is a Business Subscription or an Enterprise Subscription for the iOS operating system, You may only distribute Your Application via either the Apple App Store for iOS or, if not distributing Your Application through the Apple App Store for iOS, then for deployment directly to Apple end-user iOS devices.

4.5. Mac OS X Distribution. If Your Subscription is an Indie Subscription for the MAC OS X operating system, or if you have a Starter Edition license for the MAC OS X operating system, You may only distribute Your Application via the Apple Mac App Store. If Your Subscription is a Business Subscription or an Enterprise Subscription for the MAC OS X operating system, You may only distribute Your Application via the Apple Mac App Store or, if not distributing Your Application through the Apple Mac App Store, then for deployment directly to Apple end-user Mac OS X computers.

5. RESTRICTIONS AND LIMITATIONS ON ALL LICENSES; RESERVATION OF RIGHTS

5.1. Reservation of Rights. Xamarin reserves all rights in and to the Software not expressly granted to You. No title to or ownership of the Software is transferred to You. Xamarin and/or its licensors retain all right, title and interest in and to all intellectual property rights in the Software, including any adaptations or copies thereof. You acquire only a conditional license to use the Software during the applicable license term or Subscription Term. The Software is protected by intellectual property laws, including without limitation the copyright laws, and treaties of the United States and other countries. Nothing contained in this Agreement should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Xamarin’s trade names, trademarks or service marks without Xamarin’s express prior written consent. You shall not remove, alter, or obscure any proprietary copyright, trademark, patent or other proprietary notices contained on or within the Software and shall reproduce such notices on any backup copy of the Software.

5.2. Restrictions. You may not: (i) reverse engineer, decompile, or disassemble the Software, provided that to the extent the foregoing prohibitions are expressly prohibited by applicable statutory law, Xamarin shall retain the maximum protection available against reverse engineering, decompiling, or disassembly under applicable law, (ii) transfer Your license rights under this Agreement, in whole or in part, (iii) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign or otherwise transfer to a third party any or all of the Software or any copy thereof, in whole or in part (unless expressly authorized to do so by Xamarin in writing), (iv) use any or all of the Software for commercial timesharing or service bureau use, or (v) modify or create derivative works of the Software. The Software in all forms other than binary code form are proprietary and confidential information of Xamarin and its licensors, with the exception of Separately Licensed Components and open source components of the Software.

6. SEPARATELY LICENSED COMPONENTS

Your rights with respect to any Separately Licensed Components are defined by those terms accompanying such Separately Licensed Components. Nothing in this Agreement shall restrict, limit, or otherwise affect any rights or obligations You may have, or conditions to which You may be subject, under such license terms; however, if You distribute copies of any Separately Licensed Components independent of the Software, You must remove all Xamarin trademarks, trade dress, and logos from each copy.

7. UPDATES AND SUPPORT

Each Subscription includes updates to the Software that Xamarin makes generally commercially available as part of Xamarin’s standard offering for the Software during the applicable Subscription Term (“Updates”). For clarity, Xamarin has no obligation to provide Updates for Xamarin Evaluation or Starter Edition licenses. Other than the Updates, Xamarin has no obligation to provide support or maintenance services to You, except that: (i) You may participate in Xamarin’s online support forum in accordance with Xamarin’s then-current forum policies, and (ii) if Your Business or Enterprise Subscription includes customer support services (“Support Services”), You may contact Xamarin support by emailing the email address designated for support in Your account management page located at http://store.xamarin.com/account/my/subscription <https://store.xamarin.com/account/my/subscription>. Any Updates that You may download or receive that are not accompanied by a separate license agreement are also “Software” and governed by this Agreement. You may download Updates only during the applicable Subscription Term, and only for copies of the Software for which you have a current and valid Subscription. Any new versions, releases or updates to the Software that Xamarin does not make generally available as part of Updates are outside the scope of this Agreement and not included in Your Subscription.

8. CONFIDENTIALITY

Each party agrees that all business, technical and financial information disclosed to a party (as the “Receiving Party”) by the other party (as the "Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that (i) if disclosed in tangible form, it is marked ‘confidential’ or ‘proprietary’, or (ii) if disclosed orally, it is identified at the time of disclosure, and confirmed in writing within thirty (30) days as confidential or proprietary. The Software, any Xamarin code or technology, performance information relating to the Software, or any information relating to any of the foregoing shall be deemed Confidential Information of Xamarin without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior its receipt; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the Receiving Party without access to or use of such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the extent required to comply with such regulation or order and with notice to the Disclosing Party, if legally permitted). The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and that upon any such disclosure the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. You acknowledge and agree that the Xamarin integrated development software that is installed with the Software may make Internet connections in order to check for updates, provide Software usage statistics, validate license keys in order to prevent unauthorized use, and provide other services to You and Xamarin customers.

9. FEES

All licenses granted hereunder are subject to Your payment of all fees or other charges set forth in this Agreement and/or the applicable Order Form (“Fees”). You agree to pay all Fees in accordance with the terms and conditions set forth in this Agreement and the applicable Order Form. Xamarin may add new features and functionality to the Software for additional fees and charges at any time. Xamarin may amend fees and charges for the Software, at any time in its sole discretion, and such amended Fees shall go into effect during the Subscription Term immediately following the then-current Subscription Term. Unless otherwise set forth herein, all Fees paid are non-refundable. In the event Xamarin terminates this Agreement for Your breach of the Agreement, You shall receive no refund or exchange for any unused time on a Subscription, any license or Fees for any portion of the Software or Support Services, or for anything else. In the event You terminate this Agreement due to Xamarin’s uncured breach of the Agreement in accordance with the termination provision set forth below, You shall be entitled to receive a refund of any prepaid Fees for the portion of any then-current Subscription Term that remains as of the effective date of termination, which will be prorated on a calendar monthly basis. Partial months shall be treated as fully used and shall not apply against any proration. All information that You provide in connection with a purchase or transaction or other monetary transaction interaction with Xamarin must be accurate, complete, and current. You shall pay all Fees and any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Xamarin by any authority in connection with or arising from the Software, Support Services, and/or this Agreement, excluding taxes based upon Xamarin’s net income but inclusive of any applicable withholding taxes. You shall pay each invoice issued by Xamarin by the due date and in the currency specified by Xamarin in the applicable Order Form. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.

10. LIMITED WARRANTY

10.1. Software. For thirty (30) days from the effective date of the Order Form under which you purchase a Subscription to the Software, Xamarin warrants that with respect to Software (other than Software provided without charge which is provided “AS IS” WITHOUT WARRANTIES OF ANY KIND) the Software will substantially conform to the documentation accompanying the Software. If You report the nonconformity to Xamarin by emailing ar@xamarin.com <mailto:ar@xamarin.com>within thirty (30) days from the date of the effective date of the applicable Order Form, Xamarin will, at its sole discretion, either resolve the nonconformity or refund the Subscription Fees You paid for the Software. Any unauthorized use or modification to the Software voids this warranty. THE FOREGOING WARRANTY IS YOUR SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

10.2. Support Services. Xamarin warrants that any Support Services purchased will be supplied in a good and workmanlike manner in accordance with generally accepted industry standards. This warranty will be effective for thirty (30) days following delivery of the Support Services. If you report a breach of this Support Services warranty to Xamarin by emailing ar@xamarin.com <mailto:ar@xamarin.com>within thirty (30) days following delivery of the Support Services, Xamarin’s only obligation and Your exclusive remedy is to either correct the Support Services so that they comply with this warranty or, at Xamarin’s option, refund a pro-rata portion of Subscription Fees You paid for the days that deficient Support Services were delivered. As files may be altered or damaged in the course of Xamarin providing Support Services or other technical services, You agree to take appropriate measures to isolate and back up Your systems.

11. WARRANTY DISCLAIMER

THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR DISTRIBUTION WITH ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS, DIRECT LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR OTHER USES IN WHICH FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. THE SOFTWARE IS ONLY COMPATIBLE WITH CERTAIN COMPUTERS AND OPERATING SYSTEMS (FOR EXAMPLE, NOT ALL ANDROID DEVICES ARE SUPPORTED) AND NO WARRANTY IS PROVIDED WITH RESPECT TO USE OF THE SOFTWARE WITH UNSUPPORTED DEVICES OR SYSTEMS. THE SOFTWARE MAY BE BUNDLED OR OTHERWISE PROVIDED WITH SEPARATELY LICENSED COMPONENTS OR OTHER COMPONENTS, PRODUCTS OR SERVICES WHICH ARE LICENSED, SOLD, OR MADE AVAILABLE BY ENTITIES OTHER THAN XAMARIN. XAMARIN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SUCH SEPARATELY LICENSED COMPONENTS AND OTHER THIRD PARTY COMPONENTS, PRODUCTS OR SERVICES. ANY SUCH COMPONENTS, PRODUCTS OR SERVICES ARE PROVIDED ON AN “AS IS” BASIS HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THE LIMITED WARRANTY SECTION ABOVE, XAMARIN SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT RELATING TO THE SOFTWARE AND SUPPORT SERVICES. XAMARIN MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS LIMITED WARRANTY. XAMARIN DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL SATISFY YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR SUPPORT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN DISCLAIMERS AND LIMITATIONS OF WARRANTIES OR CONDITIONS, SO PORTIONS OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY STATE OR JURISDICTION.

12. INDEMNIFICATION

12.1. Your Indemnification Obligations. You will defend, indemnify and hold harmless Xamarin from and against any loss, cost, liability or damage, including attorneys’ fees, for which Xamarin becomes liable arising from or relating to any claim relating to (i) Your Applications, including but not limited to any claim brought by a third party alleging that Your Applications infringe or misappropriate the intellectual property or other rights of a third party or violate applicable law; and (ii) Your breach or alleged breach of this Agreement or any representation, warranty or covenant made by You herein. Your indemnification obligation is subject to You receiving (a) prompt written notice of the claim, (b) full information and reasonable cooperation (at Your expense), and (c) full (and sole) authority to defend or settle the claim or suit, provided that Xamarin may participate with counsel of Xamarin’s own choosing at Xamarin’s expense.

12.2. Xamarin Indemnification Obligations. Upon Your written request, and subject to Section 13 below, Xamarin agrees to defend and/or settle (at Xamarin’s option) any and all claims, suits, actions or proceedings brought by a third party against You to the extent alleging direct infringement of a valid and registered United States patent or copyright by the Software (“IP Claim(s)”), and shall pay all damages finally awarded or settlement amounts entered into to the extent based upon such an IP Claim; provided that You give Xamarin (i) prompt written notice of the IP Claim, (ii) full information and reasonable cooperation (at Xamarin’s expense), and (iii) full (and sole) authority to defend or settle the claim or suit, provided that You may participate with counsel of Your own choosing at Your own expense. Notwithstanding the foregoing, Xamarin shall have no liability for (or obligation to defend You against) any IP Claim (a) based upon use of other than the then-current, unaltered version of the applicable Software, unless the infringing portion is also in the then-current, unaltered release; (b) based upon use, modification, operation or combination of the applicable Software with non-Xamarin software programs, data, equipment or documentation if such infringement would have been avoided but for such use, modification, operation or combination; (c) based upon compliance with Your designs, specifications or instructions; (d) based upon Your Applications or other software applications (including claims covered by Your indemnification obligation in Section 12.1 above); (e) based upon any third party software or materials, including, without limitation, any Separately Licensed Components; or (f) if the total aggregate Fees received by Xamarin with respect to Your Software license or Subscription in the 12 month period immediately preceding the claim is less than USD$25,000. If the Software is held by a court of competent jurisdiction to infringe or misappropriate a third party intellectual property right, or its use is enjoined, or if in the opinion of Xamarin the Software is likely to become the subject of an IP Claim, then Xamarin may, in its sole discretion and at its own cost, either (w) procure for You the right to continue using such Software; (x) modify such Software (or the infringing portion thereof) such that it becomes non-infringing, while providing substantially equivalent performance; (y) replace such Software with non-infringing software that provides substantially equivalent performance; or (z) require You to cease using such Software, in which case You will immediately cease use of such Software and Xamarin will, upon confirmation of cessation of Your use, refund to Your any pre-paid fees for such Software, prorated on a 12-months basis. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF XAMARIN, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY IP CLAIM OR CLAIMS OF INFRINGEMENT OF THIRD-PARTY RIGHTS.

13. LIMITATION OF LIABILITY

NEITHER PARTY NOR ANY OF ITS LICENSORS, SUBSIDIARIES, OR EMPLOYEES WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, TORT, ECONOMIC OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR SUPPORT SERVICES, OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR SUPPORT SERVICES, OR ANY LOSS OF PROFITS, BUSINESS OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF WHETHER ARISING IN CONNECTION WITH ONE CAUSE OF ACTION OR MULTIPLE CAUSES OF ACTION) EXCEED 1.25 TIMES THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SUPPORT SERVICES OUT OF WHICH SUCH CLAIM AROSE (OR USD$50 IF YOU RECEIVED THE SOFTWARE AND SUPPORT SERVICES FREE OF CHARGE). THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 13 SHALL NOT APPLY TO: (I) CLAIMS RELATING TO DEATH OR PERSONAL INJURY; (II) YOUR INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 12.1; (III) YOUR BREACH OF SECTIONS 3 (RIGHTS AND LICENSES), 4 (REDISTRIBUTABLES), 5 (RESTRICTIONS AND LIMITATIONS ON ALL LICENSES; RESERVATION OF RIGHTS), AND 6 (SEPARATELY LICENSED COMPONENTS); AND (IV) YOUR OBLIGATION TO PAY FEES PURSUANT TO SECTION 9 (FEES). IN THOSE JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, EACH PARTY’S LIABILITY SHALL BE LIMITED OR EXCLUDED TO THE MAXIMUM EXTENT ALLOWED WITHIN THOSE JURISDICTIONS.

14. TERM AND TERMINATION

This Agreement becomes effective on the earlier of: (i) the effective date of the initial Order Form, or (ii) the date upon which You manifest Your assent to this Agreement, electronically or otherwise. This Agreement continues in effect until the last to expire of the Order Forms, unless it either expires or is earlier terminated in accordance with the terms and conditions set forth herein. The term for each Subscription and related Updates and Support Services shall be as set forth on the applicable Order Form (each a “Subscription Term”). Unless otherwise set forth in an Order Form, all Subscription Terms shall automatically renew for periods equal in duration to the expiring Subscription Term, unless either party provides written notice of its intent not to enter into a renewal Subscription Term no less than thirty (30) days prior to the commencement of any renewal Subscription Term. In Your case, such notice shall be provided via email to ar@xamarin.com <mailto:ar@xamarin.com>, or, if You purchased Your Subscription at https://store.xamarin.com and pay via credit card, by indicating non-renewal within Your account management page located at https://store.xamarin.com/account/my/subscription <https://store.xamarin.com/account/my/subscription>). The term for each Xamarin Evaluation license expires thirty (30) days from installation (or such other period as may be indicated within the Software). In the event that a party commits a breach of its obligations under this Agreement and fails to cure that breach within thirty (30) days after receiving written notice thereof, the other party may terminate this Agreement immediately upon written notice to the party in breach; provided, however, that such cure period shall not be applicable to Your breach of any license restrictions set forth in this Agreement. Your right to distribute the Redistributables shall survive expiration of this Agreement solely as part of Your Applications developed during the term of this Agreement; provided that in the event Xamarin terminates this Agreement for Your breach, all rights granted to You in the Redistributables shall immediately terminate. Except for Your right to distribute the Redistributables as expressly provided in this Section, upon any expiration or termination of this Agreement, all licenses granted to You under this Agreement shall terminate, You shall immediately cease any and all use of the Software, and Xamarin reserves the right to disable Your access to and use of the Software. All rights and obligations under this Agreement which by their nature are intended to survive shall survive any expiration or termination of this Agreement.

15. MISCELLANEOUS TERMS

15.1. Benchmark Testing. This benchmark testing restriction applies to You if You are a software developer or licensor or if You are performing testing on the Software at the direction of or on behalf of a software developer or licensor. You may not, without Xamarin's prior written consent not to be unreasonably withheld, publish or disclose to any third party the results of any benchmark test of the Software. If You are a licensor of products that are functionally similar to or compete with the Software (“Similar Products”), or are acting on behalf of such a licensor, and You publish or disclose benchmark information on the Software in violation of this restriction, then notwithstanding anything to the contrary in the Similar Product's end user license agreement, and in addition to any other remedies Xamarin may have, Xamarin shall have the right to perform benchmark testing on Similar Products and to disclose and publish that benchmark information and You hereby represent that You have authority to grant such right to Xamarin.

15.2. Open Source. Nothing in this Agreement shall restrict, limit or otherwise affect any rights or obligations You may have, or conditions to which You may be subject, under any applicable open source licenses to any open source code made available in connection with the Software, including any applicable Separately Licensed Components.

15.3. Transfer. This Agreement may not be transferred or assigned by You without the prior written approval of Xamarin. Xamarin may assign or transfer this Agreement without restriction. Any transfer or assignment in contravention of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall be binding upon and enure to the benefit of the parties’ permitted successors and permitted assigns.

15.4. Choice of Law. This Agreement is and will be governed by and construed under the laws of the State of California, United States, without giving effect to conflicts of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

15.5. Dispute Resolution. If You are an entity organized and existing under the laws of one of the fifty (50) United States or an individual residing in the United States, then Section 15.5(A) will be effective and Section 15.5(B) will have no force or effect. Otherwise, Section 15.5(B) will be effective and Section 15.5(A) will have no force or effect.

(A) (You are a US entity or resident). Any action arising out of or relating to this Agreement may be brought only before any federal or state court of competent jurisdiction located in Santa Clara County, California, and You consent to the exclusive jurisdiction and venue of such courts and waive any objections of improper venue or inconvenient forum. Notwithstanding the foregoing, Xamarin may initiate litigation in any court of competent jurisdiction seeking any remedy in equity, including the issuance of a preliminary, temporary or permanent injunction, or to specifically enforce its rights under this Agreement.

(B) (You are not a US entity or resident). The parties hereby consent to resolve any dispute arising hereunder or related hereto by submission of such dispute to binding arbitration in accordance with the JAMS International Arbitration Rules (the "Rules") of JAMS, Inc., by an arbitral tribunal composed of three (3) arbitrators, who will be former judges with experience with the computer software industry. One arbitrator shall be nominated by the party initiating the request for arbitration, the second nominated by the other party, and the third, who shall act as the presiding arbitrator of the arbitral tribunal, nominated jointly by the other two arbitrators. Arbitration proceedings may be commenced by either party by providing written notice to the other party. All arbitration proceedings will be held in San Francisco, California, United States (provided that proceedings may be conducted by telephone conference call with the consent of the parties and the arbitrator) and will be conducted in the English language. All rulings by the arbitrator shall be final. The parties agree that the arbitrator will be empowered to grant injunctive or other equitable relief. The allocation of expenses of the arbitration, including reasonable attorneys’ fees, shall be determined by the arbitrator, or, in the absence of such determination, each party shall pay its own expenses. Notwithstanding the foregoing, (i) Xamarin may initiate litigation in any court of competent jurisdiction seeking any remedy in equity, including the issuance of a preliminary, temporary or permanent injunction, or to specifically enforce its rights under this Agreement, (ii) judgment on the arbitration award granted in any arbitration hereunder may be entered in, and the parties shall have the right to seek enforcement thereof by, any court of competent jurisdiction (and any additional expenses incurred in enforcing the arbitration award will be charged against the party that resists its enforcement), and (iii) You hereby consent to the jurisdiction of any federal or state court located in the State of California, United States, and waive any objections of improper venue or inconvenient forum, in connection with clauses (i) or (ii) above.

15.6. Notices. Xamarin may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on Xamarin’s website, as determined by Xamarin in its sole discretion. Xamarin reserves the right to determine the form and means of providing notifications to its customers. Xamarin is not responsible for any automatic filtering you or Your network provider may apply to email notifications Xamarin sends to the email address you provide to Xamarin.

15.7. Entire Agreement. This Agreement and the Order Forms incorporated by reference herein set forth the entire understanding and agreement between You and Xamarin regarding the subject matter of this Agreement, and supersede all prior agreements between You and Xamarin regarding the Software and Support Services. You agree that Your purchases are not contingent on the delivery of any future Software or Support Services functionality or features, or dependent on any oral or written public comments made by Xamarin regarding future functionality or features. Xamarin may, in its sole discretion, modify or update this Agreement from time to time. When Xamarin changes this Agreement, Xamarin will update the ‘last modified’ date at the top of this page. Your continued use of the Software after any such change constitutes your acceptance of the new Agreement. NO LICENSOR, DISTRIBUTOR, DEALER, RETAILER, RESELLER, SALES PERSON, OR EMPLOYEE IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY REPRESENTATION OR PROMISE THAT IS DIFFERENT FROM, OR IN ADDITION TO, THE TERMS OF THIS AGREEMENT.

15.8. Waiver. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.

15.9. Severability. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.

15.10. Export Compliance. Any products or technical information provided under this Agreement may be subject to United States export controls and exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to United States law is prohibited. The products or technical information may also be subject to the trade laws of other countries. The parties agree to comply with all applicable export control regulations and to obtain any required licenses or classification to export, re-export or import of the products, technical information, and deliverables. Without limiting the generality of the foregoing, the parties agree not to export or re-export to entities on the current United States export exclusion lists as identified by the Bureau of Industry and Security (BIS) or to any embargoed or terrorist countries as specified in the United States export and sanctions laws, or to any person or entity subject to sanctions under the regulations of the Office of Foreign Assets Control OFAC). The parties will not use deliverables for prohibited nuclear, missile, or chemical biological weaponry end uses. Please consult the BIS Bureau of Industry and Security web pagewww.bis.doc.gov <http://www.bis.doc.gov/> and the OFAC webpage <http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx> before exporting Xamarin products provided under this Agreement from the United States. Upon request, Xamarin will provide You specific information regarding applicable restrictions. However, Xamarin assumes no responsibility for Your failure to obtain any necessary export approvals.

15.11. Federal Government End-Use. If the Software being offered is licensed to the United States government or any agency thereof, the Software, including any related technical data or accompanying documentation, are "commercial items" as defined in 48 C.F.R. §2.101, and includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The use, duplication, reproduction, release, modification, disclosure or transfer of the Software and any technical data or documentation relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable. The commercial items, commercial computer software and commercial computer software documentation are being licensed to United States Government end users (i) only as commercial items, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. This is in lieu of, and supersedes, any other Federal Acquisition Regulation (“FAR”), the Defense FAR Supplement (“DFAR”), or other agency supplemental clause or provision that addresses Government rights in computer software or technical data. Any use, reproduction, release, performance, display or disclosure of the Software and/or any related technical data or accompanying documentation by or for the United States Government will be governed solely by the terms of this Agreement, to the extent permitted by law.

Mono is a registered trademark of Novell, Inc. in the United States and other countries.

Xamarin is a trademark of Xamarin Inc. in the United States and other countries.

All third party marks are property of their respective owners.

20151112