THE FOLLOWING TERMS AND CONDITIONS GOVERN YOUR USE OF THE DATA SERVICES PROVIDED TO YOU BY FluidInfo, Inc. ("Company") HEREUNDER ("API"). BY USING THE API, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("YOU" or "LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS API ALPHA LICENSE AGREEMENT ("AGREEMENT"). YOUR CONTINUED USE OF THE API SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE API. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
(a) Subject to the terms of this Agreement, Company grants to Licensee a personal, nonsublicensable, nonexclusive, nontransferable, limited license to use the API for the purpose of making procedure calls to Company's servers for storage, retrieval and/or manipulation of Licensee's information (the "Content").
(b) Company shall have the right, in its sole discretion, to limit the number of queries/calls made through use of the API and/or to limit the amount of data transferred to or from Company's servers through use of the API.
(a) Any further disclosure or use of the API to third parties by Licensee shall be accompanied by a copy of this Agreement.
(b) Licensee will not patent anything that relates to, or builds upon, extends, supplements, is based on or surrounds any aspect of any portion of the API (and will not authorize, enable or permit any third party to do so); if in case of a breach of this restriction, Company will automatically have (and is hereby granted) a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, assignable right and license to fully exercise all resulting patent rights and to allow others to do so.
(c) Licensee shall not transmit and store Content on Company's servers for which it does not have the right, at minimum, to transmit, use, copy and store. Company shall remove any Content for which it is made aware of an allegation of infringement of any intellectual property right pursuant to the procedures required by the Digital Millennium Copyright Act (17 U.S.C. 512).
(d) Licensee shall not, through use of the API, violate any applicable law or regulation in the United States and in any other territory in which either Company or Licensee operates.
(a) The API (including, without limitation, all improvements, derivatives, modifications and the like to the API), and all intellectual property rights in and to the foregoing, are and shall at all times remain the sole and exclusive property of Company and are protected by applicable intellectual property laws and treaties ("Company IP"). Subject to the terms and conditions set forth in this Agreement, Licensee shall and hereby does transfer and assign to Company all right, title and interest in and to any interest Licensee may have in the Company IP, and Company hereby accepts such transfer.
(b) Unless in violation of 2(c) above, any data stored in the Company's servers by the Licensee's use of the API shall at all times remain the sole and exclusive property of the Licensee.
There are currently no fees for use of the API but Company reserves the right, in its sole discretion, to charge for use of the API, particularly above certain usage limits that will, if imposed, be communicated to Licensee prior to any charges being incurred. Company also reserves the right to charge for any associated support.
Company is in no way obligated to provide Licensee with any error correction or support, but may provide whatever error correction and/or support services Company may determine in its sole discretion.
Licensee agrees to defend, indemnify, and hold harmless Company, its affiliates and their employees, contractors, officers, directors and representatives from all liabilities, losses, claims, and expenses, including, without limitation, reasonable attorneys' fees, that arise from Licensee's: (i) violation of this Agreement; (ii) Licensee's violation of any intellectual property right, including patents, trademarks and copyrights, of Company or any third party; or (iii) otherwise from Licensee's use of the API. Company reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee will assist and cooperate with Company in asserting any available defenses.
The parties acknowledge that the API and any services are provided "AS IS". COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE API OR ANY SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
COMPANY AND ITS LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED, TO LOSS OF REVENUES AND LOSS OF PROFITS OR (C) FOR ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF $100.00.
This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. In addition, Company may terminate this Agreement, for any or no reason, effective upon written notice thereof to Licensee. Upon termination, the license granted hereunder shall terminate and Licensee shall immediately cease all use of the API and Company may delete all Content stored on its servers. Notwithstanding the foregoing, Company will permit Licensee reasonable access to remove its Content from Company's systems. The following Sections shall survive termination of this Agreement: 2, 3 and 6 through 12.
If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the API are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The API is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the API by the Government shall be governed solely by the terms of this Agreement.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the API or Content in violation of any such restrictions, laws or regulations. By using the API, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
This Agreement shall be governed by and construed under the laws of the State of New York without giving effect to the principles of conflicts of law. The parties hereby agree that the sole and exclusive jurisdiction and venue for disputes arising in connection with this Agreement shall be the state and Federal courts located in New York, New York. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Licensee may not assign this Agreement without the prior written consent of Company. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto. This Agreement may only be modified by a written document executed by the parties hereto.