BY CLICKING ON THE “I AGREE” BUTTON OR USING THE SERVICE, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND CUSTOMER, AND (3) CONSENTING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MAY NOT DOWNLOAD, LAUNCH OR OTHERWISE USE THE SERVICE OR AN API CONNECTOR.
AAPI RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO MODIFY OR REPLACE THIS AGREEMENT AT ANY TIME. IF THE ALTERATIONS CONSTITUTE A MATERIAL CHANGE TO THE AGREEMENT, AAPI WILL NOTIFY CUSTOMER. WHAT CONSTITUTES A “MATERIAL CHANGE” WILL BE DETERMINED AT AAPI’S SOLE DISCRETION, IN GOOD FAITH AND USING COMMON SENSE AND REASONABLE JUDGMENT. CUSTOMER SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. USE OF THE SERVICE BY CUSTOMER FOLLOWING SUCH NOTIFICATION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THESE TERMS AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO CUSTOMER, CUSTOMER’S SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE.
“Account” means an account allowing access to the Service created in Customer’s name.“API Connectors” means connectors and API descriptions / information made available by AAPI for use in connection with the Service.
“Confidential Information” means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Service or either party’s financial condition, operations or business, and which is clearly identified as confidential at the time of disclosure, (b) the Technology, (c) the Customer Information; and (d) the User IDs.
“Customer Information” means all data, information or other content (including APIs) entered by or collected from Customer (including a User) while accessing and using the Service.
“Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
“Technology” means the API Connectors and other technology used by, or on behalf of, AAPI to provide the Service, and all data, information and other content included on or accessible through the Service, except for any Customer Information.
“User ID” means unique User identification name and password issued or otherwise assigned by Customer to each User to access and use the Service.
“User” means an individual who has been assigned a User Identification by Customer to access and use the Service through Customer’s Account.
2. APPLICATION SERVICES.
2.1 Customer’s Right to Access the Service. Subject to the terms and conditions of this Agreement, AAPI will provide Customer with the right to access and use the Service during the term of this Agreement, solely for Customer’s own business purposes. Customer’s rights are non-exclusive, non-transferable and non-sublicensable. Customer may access and use the Service only as permitted by this Agreement. Customer acknowledges that Customer is not receiving any ownership interest with respect to, the Service or any Technology or Intellectual Property Rights related to the Service. Customer agrees to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Service by Customer and Users, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party.
2.2 API Connector License. Subject to these Terms, AAPI hereby grants Customer a non-transferable, non-sublicensable, royalty-free, fully paid-up, revocable right and license, personally use and install the API Connectors solely in connection with Customer’s use of the Service.
2.3 User Identification. Customer will issue a User ID to enable each User to access and use the Service. Customer is solely responsible for tracking the User IDs to specific Users and for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer. Customer will immediately notify AAPI of any unauthorized use of a User ID or any other breach of security known to it.
2.4 Prohibited Use. As a condition of Customer’s use of the Service, Customer agrees not to: (a) access, tamper with, or use any non-public areas of AAPI’s systems or said system’s providers; (b) attempt to probe, scan, or test the vulnerability of AAPI’s systems or any related system or network or breach any privacy, security or authentication measures; (c) reverse engineer or attempt to discover the underlying source code or algorithms of the Technology; (d) provide access to or utilize the Service under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than Users, to, directly or indirectly, utilize or otherwise benefit from the Service, whether or not for monetary or other consideration; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing AAPI’s systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity. AAPI will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. Customer acknowledges that AAPI has no obligation to monitor Users’ access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
2.5 Customer Information Restrictions. Customer shall (i) be responsible for the accuracy, quality and legality of Customer Information and for the means by which Customer acquired Customer Information, and (ii) warrant that Customer Information does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy. Customer agrees to take commercially reasonable steps to ensure that Customer Information does not contain any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable.
2.6 License to AAPI. Subject to the Agreement, Customer hereby grants AAPI a worldwide, non-exclusive, royalty-free license during to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index Customer Information to provide the Service to Customer.
3.1 Technology. AAPI retains all right, title and interest in and to, and all Intellectual Property Rights embodied in or related to the Service, Technology, and any other information or technology used or made available in connection with the Service, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement. Except as set forth in Section 2, this Agreement does not grant Customer a license to API Connectors, or to any other software technology forming part of the Technology, by implication, by estoppel, or otherwise. AAPI name, logo, and the product and service names associated with the Service are trademarks of AAPI or third parties, and no right or license is granted to Customer to use them separate from Customer’s right to access the Service.
3.2 Customer Information. Subject only to the limited license expressly granted hereunder, as between Customer and AAPI, AAPI acquires no right, title or interest from Customer in or to Customer Information, including any intellectual property rights therein.
4. SUBSRIPTION AND PAYMENTS.
4.1 Fee. AAPI makes available the Service for no fees. However, certain features of the Service may be subject to payment of a subscription fee (“Paid Features”). If Customer wishes to use the Paid Features, Customer agrees to pay the applicable subscription fees, plus any applicable taxes.
4.2 Payment. To the extent applicable, subscription fees are fully earned upon payment. Customer must cancel the subscription before it renews each month in order to avoid billing of the next month’s subscription fees. Payments are nonrefundable and there are no refunds or credits for partial-month subscription periods.
5. TERM AND TERMINATION.
5.1 Term. This Agreement will become effective on the Effective Date and shall remain in force for a period of twelve (12) months. Thereafter, the Agreement shall automatically renew for subsequent twelve (12) months periods, unless either party gives thirty (30) days’ prior written notice of non-renewal to the other party.
5.2 Termination. Customer may terminate this Agreement and Customer’s subscription at any time by giving a thirty (30) days’ prior written notice to AAPI. Customer acknowledges and agrees that AAPI may stop (permanently or temporarily) providing the Service (or any features within the Service) to Customer at AAPI’s sole discretion, without prior notice to Customer, if Customer breaches the terms of this Agreement. In addition, AAPI may terminate this Agreement and Customer’s right to access and use the Service for any reason or no reason by giving thirty (30) days’ prior written notice to Customer. Customer acknowledges and agrees that, if AAPI disables access to Customer’s account, Users will be prevented from using the Service. Termination of this Agreement by either party shall not prejudice AAPI’s right to recover or prove damages for amounts incurred or accrued and unpaid prior to the date of termination. No remedy referred to in this Agreement is intended to be exclusive, but each remedy shall be cumulative and in addition to any other remedy referred to above or otherwise available to AAPI at law or in equity and may be exercised concurrently or consecutively.
6. CONFIDENTIAL INFORMATION.
6.1 Obligations. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Service under this Agreement, respectively, the use in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
6.2 Termination of Obligations. The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.3 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 7.3.
7. NO WARRANTIES.
THE SERVICE IS PROVIDED “AS IS” AND CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK. AAPI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SERVICE. AAPI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. FURTHERMORE, AAPI DOES NOT WARRANT THAT THE SERVICE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, THAT THE USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE.
8.1 Mutual Indemnification. Each party agrees, at its sole cost and expense, to defend, indemnify and hold the other party harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with such party’s gross negligence and/or willful misconduct.
8.2 AAPI Indemnification. AAPI shall, at its own expense, defend, indemnify and hold Customer harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising from or based on a claim that the Service, as provided by AAPI, infringe the copyright or misappropriate the trade secrets of any third party.
8.3 Customer Indemnification. Except for claims covered under AAPI’s indemnification obligations under Section 8.2 above, Customer shall, at its own expense, defend, indemnify and hold AAPI harmless against any third party claims, actions or proceedings, damage, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with any use of the Service.
Indemnification Procedures. The indemnification obligations of each party are dependent on the party seeking indemnity (a) giving the indemnifying party prompt written notice of such claim, (b) permitting the indemnifying party to defend or settle the claim, (c) not making any admission of liability in respect of the whole or any part of the claim or entering into any agreement or negotiation to settle or dispose of the claim, (d) providing all reasonable assistance to the indemnifying party in defending or settling the claim, and (e) the claim shall not have arisen due to unauthorized acts or misconduct of the other party or a third party, acting on behalf of such other party.
9. LIMITATION OF LIABILITY.
9.1 Limitation. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, AAPI’S MAXIMUM LIABILITY TO CUSTOMER UNDER THIS AGREEMENT IS LIMITED TO THE FEES PAID BY CUSTOMER TO AAPI IN THE SIX (6) CALENDAR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE FOR WHICH ANY CLAIM OF LIABILITY IS MADE.
9.2 Disclaimer. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL AAPI BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING OUT OF LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ENTERPRISE OR LOSS OF OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CONSEQUENCES OF ERRORS, DOWNTIME, WHETHER SCHEDULED OR UNSCHEDULED, OR FAULTY TRANSMISSION.
9.3 Basis of Bargain. THE PARTIES ACKNOWLEDGE THAT (A) AAPI HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, and (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
Customer may not assign, resell or otherwise transfer any goods or services received under this Agreement to a third party without the prior written consent of AAPI. Notwithstanding the foregoing, Customer may assign all of its rights and duties under this Agreement to a third party that: (a) directly or indirectly controls Customer; (b) is controlled by or under common control with Customer; or (c) purchases all or substantially all of Customer’s assets; provided, that: (i) Customer gives prior written notice to AAPI of the assignment, and (ii) the assignee agrees to be bound by all the terms of this Agreement. Assignment of this Agreement will not release Customer from any prior outstanding obligation under this Agreement. Subject to the foregoing, this Agreement will inure to the benefit of each party’s successors and assigns. Any assignment in violation of this Section 10 is null and void.
No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever. Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees. The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party. Nothing in this Section 11 prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.
12. FORCE MAJEURE.
AAPI will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Customer or third parties or an act of God, war, civil disturbance, court order, labor dispute or other cause beyond AAPI’s reasonable control, including without limitation failures or fluctuations in electrical equipment. In addition, the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. AAPI is not responsible for any delays, failures, or other damage resulting from such problems. Customer acknowledges that the Service may be affected by numerous factors outside of AAPI’s control.
13. GENERAL TERMS.
If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. Capitalized terms have the meanings given in this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail. This Agreement will be governed by the laws of the State of California without regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state and federal courts located in Orange County, California. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding. Customer agrees to comply with all laws and regulations applicable to the use of the Technology, including but not limited to export laws, regulations and laws. These Terms constitute the entire, final and exclusive agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, discussions, negotiations and communications, whether written or oral, express or implied.