AXCIENT API LICENSE AGREEMENT
BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) PROVISIONING AN API CREDENTIAL FOR USE (3) ACCESSING, DOWNLOADING OR USING A PROGRAM (SUCH AS AN API SOFTWARE DEVELOPMENT KIT), (4) MAKING AN API REQUEST TO OUR API SERVICES, OR (5) OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT, YOU (“LICENSEE”) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”).
AXCIENT MAY CHANGE THIS AGREEMENT BY POSTING A REVISED VERSION AT HTTPS://WWW.axcient.com/LEGAL-NOTICES/ OR ANY OTHER APPLICABLE AXCIENT WEBSITE AND SUCH CHANGES WILL BE EFFECTIVE UPON POSTING. YOUR USE OF THE API (AS DEFINED BELOW) FOLLOWING ANY SUCH CHANGES, WILL CONSTITUTE YOUR ACCEPTANCE OF THOSE CHANGES.
1. API and Content Description. Licensee desires to license certain of eFolder, Inc. (dba Axcient) (“Company” or “AXCIENT”) application programming interfaces and their associated tools and documentation (“APIs”), that are designed to permit Licensee to receive data and content (“Content”) from Company’s proprietary products so that Licensee can create an application or service or enhance an existing application or service (Licensee’s “Application”).
2. API and Content License. Subject to the terms and conditions of this Agreement, Company grants Licensee a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable license under Company’s intellectual property rights during the term of this Agreement to: (a) use the APIs to develop, test, and support the Application; (b) distribute or allow access to Licensee’s integration of the APIs within the Application to end users of the Application; and (c) display, process, copy, and further disseminate the Content received from the APIs within the Application.
3. Developer Documentation. Licensee’s use of the APIs and display of the Content must comply with the technical documentation, usage guidelines, call volume limits, and other documentation (“Developer Documentation”) maintained at Company’s developer site located at https://developer.axcient.com/ (“Developer Site”). In the event of any conflict between the Developer Documentation and this Agreement, this Agreement shall prevail.
4. Restrictions. Except as expressly authorized under this Agreement or by Company in writing, Licensee shall not: (i) disclose API credentials to any person or entity or computer system (“API user”) unless (a) such party is bound by terms at least as protective as this Agreement, and (b) Licensee hereby agrees to be responsible for, and liable to Company for, any breaches of this Agreement caused by any party using an API credential that is attributed to Licensee, (ii) use the APIs for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement or the Developer Documentation, or breach any laws or regulations, or violate the rights of third parties; (iii) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials Licensee receive or access pursuant to this Agreement, including but not limited to, the APIs, the Developer Documentation, and the Content; (iv) solicit or induce or attempt to induce, directly or indirectly, a customer or partner of the Company to terminate or reduce its engagement with the Company; (v) sell, lease, share, transfer, sublicense or fail to protect the confidentiality of any Content obtained through the APIs, directly or indirectly, to any third party, including any data broker, ad network, ad exchange, or other advertising monetization-related party; (vi) use the APIs in a manner that, as determined by Company in its sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Developer Documentation; (vii) use the APIs in, or to connect to, an application that competes with products or services offered by Company; (viii) use the APIs in conjunction with, or combine content from the APIs with, Company content obtained through scraping or any other means outside the official Company APIs; (ix) interfere with or disrupt Company services or servers or networks connected to Company services, or disobey any requirements, procedures, policies or regulations of networks connected to Company services, or transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through your use of the APIs; (x) perform any action that would violate the Company’s Acceptable Use Policy (https://axcient.com/acceptable-use-policy-for-axcient-products-and-services/); or (xi) copy, adapt, reformat, reverse-engineer, disassemble, decompile, download, translate or otherwise modify the Company’s website or Company’s products or any of Company’s other services, through automated or other means. This Agreement does not include any right for Licensee to use any trademark, service mark, trade name or any other mark of Company or any other party or licensor. No rights or licenses are granted except as expressly set forth herein.
5. Proprietary Rights. As between the parties, Company owns all rights, title, and interest in and to the APIs and to all output and executables of the APIs, and, subject to the foregoing, Licensee owns all rights, title, and interest in and to the Application. Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any property of the first party. All rights not expressly granted herein are deemed withheld.
7. Fees. Licensee shall access Company’s public APIs at no charge. Company reserves the right to change pricing for API access and usage at any time with 30-day notice posted to our Developer Site or other Company website.
8. Support. Licensee agrees to report to Company any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties. 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 (and anything it provides in connection therewith will be deemed part of the API).
9. Confidentiality. Certain information clearly labeled by the Company as “Confidential Information” constitutes Company’s confidential information (“Confidential Information”). Licensee hereby agrees (i) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Licensee employs with respect to its own confidential materials), (ii) not to divulge any Confidential Information to any third person (except consultants, subject to the conditions stated below), (iii) not to use any Confidential Information except for the purposes set forth in this Agreement, and (iv) not to copy or reverse engineer any Confidential Information. Any employee or consultant given access to the Confidential Information must have a legitimate “need to know” and shall be similarly bound in writing. Licensee acknowledges and agrees that due to the unique nature of the Company’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, Company shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
10. Indemnity. Licensee agrees that Company, its affiliates and their directors, officers and employees (Indemnified Parties), shall have no liability whatsoever for (i) any use Licensee makes of the API or (ii) Licensee’s Application. Licensee shall indemnify and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from (i) or (ii).
11. Warranty Disclaimer. The parties acknowledge that the API, Content and any services are provided “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, 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. AXCIENT DOES NOT GUARANTEE THAT THE OPERATION OF ANY API WILL BE UNINTERRUPTED OR ERROR-FREE.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 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 AMOUNT IN THE AGGREGATE EXCEEDING FIVE HUNDRED UNITED STATES DOLLARS (USD $500.00)). COMPANY AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
13. Termination. This Agreement shall continue until terminated as set forth in this section or for the term set forth in the applicable services or order form entered into by the parties for the account associated with the API credentials. Either party may terminate this Agreement at any time. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of Company’s Confidential Information, and shall so certify to Company that such actions have occurred. Sections 4, 5 and 9 through 14 shall survive termination of this Agreement.
14. General. This Agreement is governed by and construed in accordance with the laws of the State of Colorado without regard to conflict of laws principles. All disputes arising in connection with this Agreement shall be subject to the sole and exclusive jurisdiction and venue of the United States District Court for the District of Colorado. If that court lacks jurisdiction, the parties agree that jurisdiction shall be with the District Court of Denver County, Colorado. Both parties hereby consent to the jurisdiction of such Courts and agree that such Courts shall have exclusive jurisdiction for such disputes, unless they decline to accept jurisdiction of such matters. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement will be construed as though all parties had drafted it. Licensee may not assign or transfer this Agreement (or any part hereof) without the prior written consent of Company. Company shall have the right to freely assign or otherwise transfer this Agreement (in whole or part). All notices required or permitted under this Agreement will be in writing and will be sent (i) if to Company: legal@axcient.com, and if Licensee: such email address as Licensee provides to Company on registering for the API (or, in either case, such other address as a party may designate in writing). 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.