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Last Updated 10/28/2011
IMPORTANT: PLEASE READ THIS APPLICATION PROGRAM INTERFACE AGREEMENT ("AGREEMENT") CAREFULLY. Your electronic acknowledgement and/or your access and/or use of the Company API (defined herein) and/or any related items or documentation licensed hereunder indicates your acceptance of all of the terms and conditions of this Agreement, including, in particular, limitations on access, use, transferability, warranty and liability. You agree that this Agreement is enforceable like any written negotiated agreement signed by you. In addition, by electronically accepting this Agreement or through your actual use of the Company API, you certify that you have the authority to bind yourself to the terms and conditions set forth in this Agreement. If you do not agree to these terms and conditions, you may not use the Company API, be granted a license or exercise any of the rights granted hereunder. Thus, if you do not agree to the terms and conditions of this Agreement, do not copy, download, access and/or use the Company API. the Company API is licensed, not sold. You are permitted to copy, download, install and/or use the Company API ONLY in accordance with the terms of this Agreement.
This Agreement is made and entered into, as of the Effective Date (defined herein), by and between Scoop.it, Inc., a California corporation having its principal offices at 48 2nd Street, San Francisco, CA 94103 ("Company"), and you ("Licensee") (each a "Party" and collectively, the "Parties" to this Agreement).
WHEREAS, Company owns rights in and to Company's application programming interface and any and all Updates (as defined herein) thereto, including without limitation any libraries, source code, operational structure, and related documentation, developments, upgrades, patches and modifications, including all copyrights, patents, trademarks, trade secrets, and intellectual property thereto, and any other associated material (the "Company API");
WHEREAS, Licensee desires to license from Company, and Company desires to license to Licensee certain rights to use the Company API, subject to the terms and conditions as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
means any online, electronic or printed user guides and other documentation which Company makes available which describes the installation, inspection, use and/or other aspects of the Company API.
means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
means the date Licensee accepts this Agreement (including by electronic means and/or use of the Company API).
means the person who downloads, accepts, copies and/or uses the Company API pursuant to this Agreement.
shall have the meaning set forth in Section 5.
shall mean (a) the trademarks, trade names, and service marks used by Company, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks; and (c) such other marks and logotypes as Company may designate from time to time.
means any modifications, error corrections, bug fixes, new releases, updates and/or any other changes or additions to the Company API that may be made available (for a fee or no fee) hereunder by Company to Licensee during the Term. Updates may be automatically sent to or downloaded onto Licensee's device by Company, and Licensee expressly consents to Company's right and license to do so.
Licensee hereby acknowledges and agrees that Licensee shall not use the Company API or Documentation for any purpose not set forth in Section 2.1 herein, and that Licensee shall use the Company API and Documentation in accordance with all applicable laws, rules, and regulations. Except as expressly provided herein, Licensee shall not, and shall not permit any third party to:
Licensee shall be required to obtain and pay for any and all third party services, software, hardware, and firmware necessary for use and implementation of the Company API.
Licensee agrees that it shall be solely responsible for maintaining copies, backing up, and/or archiving all of Licensee's data or information which Licensee uses on or with the Company API, and Company disclaims any responsibility with respect therewith. All of Licensee's data used or stored by Licensee on or in connection with the Company API and/or the Websites shall be and remain at all times the property of Licensee, and Company agrees that it does not have and will not obtain any right thereto.
Licensee agrees that, if it is using the branded version of Company's API, then it must, as a condition of using and embedding the Company API into its website and/or application: (a) include Company's Trademarks (as described herein) and a link to Company's primary Website on its website and/or in its application; and (b) include in highly visable text on its website and/or in its application providing credit to Company for use of the Company API. If Licensee desires to use the non-branded (i.e. "white label") version of Company's API, then, it must, as a condition of using and embedding the Company API into its website and/or application: (a) use only the non-branded version of the Company API at all times; and (b) pay the Licensee Fee set forth in Section 4 herein.
Licensee acknowledges and agrees that Company owns all rights in and to the Company API and Documentation, including, but not limited to worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations and "moral rights;" (c) the protection of trade and industrial secrets and confidential information; (d) Trademarks; and (e) divisions, continuations, renewals, Derivative Works, and re-issuances of any of the foregoing, now existing or acquired in the future. Licensee further acknowledges and agrees that Company shall at all times retain its ownership rights in individual copies of the Company API and Documentation and all subsequent copies and modifications of the Company API or Documentation, regardless of the form or media in or on which the original and other copies may subsequently exist. This Agreement is not a sale of the Company API, Updates or Documentation nor is it a transfer of any intellectual or proprietary rights in the Company API, Updates or Documentation. Licensee hereby assigns and transfers without further consideration to Company all of Licensee's right, title and interest in and to any modifications or Derivative Works of the Company API, Updates or Documentation created by or for Licensee, regardless whether created in accordance with the terms of this Agreement; such assignment being effective upon creation of such works, and shall include, without limitation, all rights under any intellectual property laws, including copyright. Licensee shall not take any action to jeopardize, encumber, limit or interfere in any manner with Company's ownership of and rights with respect to the Company API, or any Derivative Work or Update thereof or thereto.
As long as the branded version of the Company API is used and all of the terms and conditions of this Agreement are complied with by Licensee, there shall be no license fee during the Term. Company reserves the right to charge a license fee for access to and/or use of the Company API at any time. However, Company shall provide Licensee written notice of its intent to do so at least ten (10) days prior to the implementation of any such license fee. Should Licensee continue to access or use the Company API after such date, Licensee shall be subject to and shall pay any and all such license fees.
For any use of the non-branded version of the Company, Licensee shall pay to Company a license fee in the amount set forth during Licensee's sign up for use of the non-branded version of the Company API ("License Fee"). If no such License Fee is set forth in the sign up process, then Company and Licensee shall negotiate a mutually acceptable License Fee before Licensee is entitled to access and use the non-branded version of the Company API pursuant to the terms of this Agreement.
All expenses and costs incurred by Licensee in connection with its activities hereunder, if any, are the sole responsibility of Licensee. Licensee is not entitled to reimbursement from Company for any expenses, and Licensee agrees to hold Company harmless therefrom.
Unless terminated earlier as provided for herein, this Agreement shall commence on the Effective Date and shall continue in effect for as long as Licensee complies with this Agreement.
If permitted by law, either Party may terminate immediately, by providing the other written notice to that effect, if the other Party makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against such other Party and is not dismissed within forty-five (45) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party.
Upon termination of this Agreement, all rights and licenses granted to Licensee hereunder shall immediately cease and Licensee shall cease all use of the Company API and Documentation. Upon termination of this Agreement, Licensee shall, at Licensee's sole expense, delete or destroy the Company API and Documentation (and all copies, uses and extracts thereof) then in use by Licensee in its website or application and/or in Licensee's possession, custody or control. Company shall not be liable to Licensee in any way for any loss or damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Company's termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not be a waiver of or relieve Licensee of any breaches of this Agreement. The provisions of Sections 1 ("Definitions"), 2.2 ("Restrictions"), 2.3 ("Automatic Monitoring/Audits"), 2.4 ("Data"), 3 ("Proprietary Rights"), 5.4 ("Effect of Termination"), 6 ("Warranties/Limitation of Liability"), 7 ("Indemnification"), and 8 ("Confidentiality") and 10 ("General Provisions"), shall survive the expiration or any termination of this Agreement.
Licensee represents and warrants to Company that (i) Licensee shall be solely responsible for all copying, downloading, access to and/or use of the Company API, Updates and Documentation, (ii) Licensee has the full authority and right to enter into this Agreement; and (iii) Licensee agrees to take all reasonable steps to protect the Company API from unauthorized use, illegal reproduction, or illicit distribution.
THE COMPANY API IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT AND INTELLECTUAL PROPERTY INDEMNITY, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT LICENSEE'S USE OF THE COMPANY API WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE COMPANY API IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY ACKNOWLEDGES THAT LICENSEE IS RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE COMPANY API AND ALL CHARGES RELATED THERETO. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR LICENSEE'S USE OF THE COMPANY API AND UPDATES AND LICENSEE'S RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS, AGENTS OR THIRD PARTY USERS, WHETHER MADE IN OR ON THE COMPANY API OR OTHERWISE, SHALL CREATE ANY WARRANTY. LICENSEE'S USE OF THE COMPANY API AND UPDATES IS ENTIRELY AT LICENSEE'S OWN RISK.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER COMPANY NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, WHETHER AN ACTION BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR FINANCIAL LOSS DUE TO (i) THE FAILURE, QUALITY, PERFORMANCE, OF THE COMPANY API OR THE ACCESS OR USE OF THE COMPANY API BY LICENSEE; (ii) ANY DAMAGE TO, OR DEGRADATION OR LOSS OF ANY DATA, INFORMATION OR WORK PRODUCT OF LICENSEE, THIRD PARTY SOFTWARE; (iii) COMPANY'S PERFORMANCE OF ANY MAINTENANCE OR SUPPORT; OR (iv) ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL. Some jurisdictions do not allow the exclusion or limitation of inceidental or consequential damages, therefore, in such jurisdictions such limitations shall not apply.
IN NO EVENT SHALL THE LIABILITY OF COMPANY FOR ANY AND ALL CLAIMS HEREUNDER BY LICENSEE, REGARDLESS OF THE FORM OF THE ACTION EXCEED THE GREATER OF THE FEES PAID BY LICENSEE TO COMPANY FOR THE PRECEDING TWELVE (12) MONTH PERIOD OR US$50, WHICHEVER IS LESS.
Without limiting the foregoing, Company shall have no obligations, responsibilities and/or liabilities for any nonconformance or failure of, or error in, the Company API or Updates including if caused by: (a) use of any attachment, feature, hardware, software, source code or device in connection with the Company API or Updates; (b) transportation, neglect or misuse of the Company API or Updates or any use of the Company API or Updates that is not in accordance with this Agreement and/or the Documentation; (c) alteration, modification, or enhancement of the Company PAI or Updates; or (d) failure to provide a suitable installation or use environment for all or any part of the Company API or Updates.
THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION 6 ARE A BARGAINED FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.
Licensee hereby agrees to indemnify, hold harmless, and defend Company, its parent, subsidiaries, affiliates, licensors, suppliers, advertisers, sponsors and partners, and its and their directors, officers, employees, consultants, agents and representatives, from and against any and all actions, disputes, proceedings, claims, damages, expenses, liabilities, losses and costs, including reasonable fees of attorneys and other professionals, arising out of or relating to third party claims resulting from: (i) any breach of this Agreement by Licensee or its agents or representatives; (ii) any claim against Company for personal injury or tangible property damage directly attributable to the willful misconduct or gross negligence of Licensee or its agents or representatives; (iii) the use, operation or combination of the Company API or Updates with non-Company software, data, equipment or documentation if liability would have been avoided but for such use, operation, or combination; (iv) use of other than the then-current, unaltered version of the Company API; (v) Licensee's activities after Company has notified Licensee that Company believes such activities may result in infringement; (vi) Licensee's modifications to or markings on the Company API or Updates; (vii) the use of any unauthorized third party software or code; (viii) the use of any of Licensee's own data, information, devices or materials; and/or (ix) the use of Licensee's Account for the Services and/or Websites by any third party or the use by Licensee of a third party's Account.
For any actions subject to Section 7.1 hereunder, Company shall have the right, but not the obligation to defend such action or require Licensee to do so, in either case at Licensee's expense for all costs, fees and damages finally awarded against Company in such action or to be paid in settlement of such claim. As a condition to receiving any such indemnification, Company shall promptly notifyLicensee in writing of such claim. Licensee shall have the right, at its own expense, to participate in the defense of any such claim through counsel of its own choosing, and shall in any event cooperate reasonably with Company in defense of such claim.
In conjunction solely with Licensee's use of the Company API pursuant to this Agreement, Licensee is granted a non-exclusive license to use Company's Trademarks (including logo) as provided by Company from time to time during the Term. Initially, the Trademarks licensed pursuant to this Section can be found here and must be used only in the exact size, font and format in which they appear on the above linked web page and in accordance with Company's Trademark usage guidelines. Licensee agrees that Company retains final approval over the placement of each such Trademark on Licensee's website and/or in Licensee's application, and that such approval may be withheld by Company in Company's sole discretion.
Each Party acknowledges that the Confidential Information (as defined below) which they have obtained or may obtain during the Term is the property of the respective provider of such information. Each Party agrees not to disclose to any other person or entity, or use at any time in any way detrimental to the other, either during the Term or at any time after the expiration or termination thereof, for any reason, any Confidential Information of which a Party is or becomes aware, whether or not such information is developed by it, except to the extent that such disclosure or use is directly related to and required by performance under this Agreement. Each Party agrees to take reasonable steps to safeguard the Confidential Information of the other and to protect it against disclosure, misuse, espionage, loss and theft.
As used in this Agreement, "Confidential Information" means information that is not generally known to the public and that is or was used, developed or obtained by a Party in connection with its business, including but not limited to: (i) products or services; (ii) fees, costs and pricing structures; (iii) employees; (iv) analyses; (v) financial statements, information and reports concerning either Party; (vi) computer software, including APIs, operating systems, applications and programs; (vii) flow charts, manuals and documentation; (viii) databases, accounting and business methods; (ix) new developments, methods and processes, whether or not patentable and whether or not reduced to practice; (x) customers and customer lists; (xi) copyrightable works; (xii) all technology and trade secrets; and (xiii) all similar and related information in whatever form. Confidential Information shall not include information: (i) independently developed by a Party that does not violate the terms of this Agreement; (ii) acquired by a Party from a third party which is not, to such Party's knowledge, under an obligation to the other not to disclose such information; or (iii) which is or becomes publicly available through no breach by a Party of this Agreement.
If either Party receives a subpoena or other validly issued administrative or judicial request or order seeking the other Party's Confidential Information, the Party that received the request shall promptly notify the other Party and allow such Party an opportunity to prevent disclosure of its Confidential Information. Unless the demand shall have been timely limited, quashed or extended, the Party that received the request shall thereafter be entitled to comply with such demand to the extent permitted by law.
Company does not at any time guarantee the availability or uptime of the Websites and/or the Services, and/or the Company API. Company may perform maintence, scheduled or unscheduled, at any time with or without notice to you, in Company's sole discretion.
This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Licensee without the prior written consent of Company. Company may assign, license, delegate or otherwise transfer its rights or obligations hereunder to any third party without restriction. Subject to the preceding sentences, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 8.1 shall be null and void.
This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
The Company API may include certain third party code covered by other licenses, as identified in a designated directory within the Company API or on a designated page of the Websites. LICENSEE'S LICENSE TO THIS THIRD PARTY CODE IS SUBJECT TO THE APPLICABLE THIRD PARTY LICENSE, EVEN IF CONTRARY TO THIS AGREEMENT.
Company is not precluded at any time from developing, creating, licensing, using, distributing or otherwise exploiting any goods or services that are competitive with Licensee's website and/or application and/or any other Licensee goods and/or services.
Except for any action subject to indemnification as set forth above, if any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the substantially prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorney fees paid or incurred in good faith.
The waiver by either Party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the Parties. Neither Party, nor either Party's agents, have any authority of any kind to bind the other Party in any respect whatsoever.
Neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, error in the coding of electronic files, Internet or other network "brownouts" or failures, power failures, novelty of product manufacture or other unanticipated product development problems, third party attach or other actions and acts of civil and military authorities.
Licensee shall abide by all applicable export and import laws, regulations and restrictions of the United States and its agencies or authorities in Licensee's use of the Company API. The Company API, or any part thereof, may not be downloaded or otherwise exported or re-exported (a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. Licensee represents and warrants that Licensee is not located in, under the control of, or a national or resident of any such country or on any such list. Licensee acknowledges that it is Licensee's responsibility to comply with any and all export and import laws, regulations and restrictions and that Company has no further responsibility after the initial provision of the Company API to Licensee within or from the United States.
The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
Licensee acknowledges and agrees that due to the unique nature of this Agreement, there can be no adequate remedy at law to compensate Company for Licensee's breach or threatened breach hereof; resulting in irreparable harm to Company that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Company shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
Except as expressly stated,this Agreement is not intended to confer any benefit on any person or entity not a Party hereto.
Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered by hand, mailed postage prepaid by certified or registered mail, return receipt requested, or transmitted by facsimile, with receipt confirmed, effective upon receipt. All notices to Company shall be sent to Scoop.it, Inc., Attention: President, 48 2nd Street, San Francisco, CA 94103, facsimile (480) 393-4086, and all notices to Licensee shall be sent to Licensee's current last known address (for example, as set forth in Licensee's Account or e-mail communication), unless Licensee otherwise notifies Company in writing of an alternative address for such notices.
Company reserves the right to make changes to this Agreement at any time, however, Company shall provide notification to Licensee of such changes, such as by posting a notification on the Websites or via e-mail. If Licensee continues to access and/or use the Company API, Updates and/or Documentation, after the effective date of such changes, then Licensee shall be deemed to have accepted the changes and agrees to follow and be bound by this Agreement as amended. Upon acceptance, the revised Agreement shall supersede all previous versions of this Agreement. Upon our request, Licensee agrees to accept or sign a non-electronic version of this Agreement.
Any claim or cause of action arising out of or related to this Agreement must be filed within 1 year after such claim or cause of action first arose regardless of any statutes or law to the contrary. In the event any such claim or cause of action is not filed (or if applicable, arbitration commenced) within such 1 year period, such claim or cause of action is forever barred.
This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom. A printed version of this Agreement and of any notices given in electronic form shall be admissible in judicial or administrative proceedings arising out of or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.